0Business law for the ship master

The principal civil courts are the County Courts, the Supreme Court of Judicature with its two branches, the High Court of Justice and the Court of Appeal, and the House of Lords.. Subje

All rights reserved

ISBN 0 85174 434 6 (Sixth Edition)

ISBN 0 85174 537 7 (Seventh Edition)

© 1998 BROWN, SoN & FERGUSON, LTD.,GLASGOw, 041 2SD

PREFACE TO THE SEVENTH EDITION

SINCE the last edition of this book was published in 1982, theInternational Maritime Organisation has concentrated on theimplementation of Conventions which had already been adopted in theseventies As a result the International Conventions on Prevention of

Training, Certification and Watchkeeping for Seafarers, 1978; theConvention on Limitation of Liability for Maritime Claims, 1976 andthe Athens Convention relating to the Carriage of Passengers and theirLuggage by Sea, 1974 were ratified by the required number of statesbetween 1983 and 1987 and so came into force internationally Theseconventions were given the force of law in the United Kingdom byapplying commencement orders to the appropriate Sections andSchedules provided for that purpose in the M.S.Act 1979 Relativelyminor changes to shipping legislation were made by the M.S.Acts 1983and 1984 and the law on pilotage in the U.K was revised by thePilotage Act 1987 The loss of the ferry Herald of Free Enterprise in

1987 was followed quickly by the introduction of regulations whichattempted to improve the operational safety of Roj Ro passengerferries In May 1988 the M.S.Act 1988 was passed and partly broughtinto force This introduces, with other matters, changes which affectthe registration of British ships in the future Unless otherwise stated Ihave endeavoured to give the legal position as at 31st December 1988

FOR supplying documents and giving permission to reproduce themthe author tenders his sincere thanks and acknowledges his indebted-ness to:-

The Controller of Her Majesty's Stationery Office

Publishers of Lloyd's Nautical Yearbook

Lloyd's Register of Shipping

The Institute of London Underwriters

The Federal Steam Navigation Company Limited

Trinity House Lighthouse Service

The Port of London Authority

The General Council of British Shipping

The Baltic and International Maritime Conference

The Director of The Seafarers' Education Service

The Secretary of The Merchant Navy Training Board

The Secretary of The General Council of British Shipping.The Secretary of The Royal Thames Yacht Club

The Registrar General of Shipping and Seamen

AUTHOR'S NOTES

1 Whilst every care has been taken to avoid mistakes and to give

up-to-date information, should any faults be found the author would

greatly appreciate the publisher's attention being drawn to them so that

they may be rectified in the future Suggestions for improvements will

also be gratefully accepted

2 Unless the context indicates otherwise, any references to the Board

of Trade or to the Department of Trade and Industry which remain

should be taken as though they were references to the Department of

Transport References to the Secretary of State, unless otherwise

stated, mean the Secretary of State, Department of Transport

References to the Dt:partment mean the Department of Transport

3 On 22nd May 1982 the Inter-Governmental Maritime Consultative

Organisation (IMCO) changed its name to the International Maritime

Organisation (IMO) After that date, unless the context indicates

otherwise, references to IMCO which have not been altered should be

taken as though they were references to the organisation's new narr.e

Page British Tonnage Certificate 117-119

Certificate of Class 141

Certificate of Class (RMC) 142

Certificate of Class(1981) 143

Machinery Certificate (LMC) (1981) 144

Interim Certificate of Class 145

Extract from Lloyd's Register Book (Register of Ships) 14H Notification of intention to make or add to a crew agreement ALC 3 1H9 Crew Agreement ALC(NMB) I 191

List of Crew ALC I(a) 202

List of Crew ALC I(b) 202

Notification of intention to discharge a seaman or seamen ALC5 204

Seaman's Allotment Note ASW 3 215

Order for the Conveyance of a Seaman RR I 221

Return of Births and Deaths RBD 1/79 226

Passenger Certificate and Passenger Ship Safety Certificate P.& S I 377-378 International Load Line Certificate 419-420 Appointment by Master of an Agent to make report and Clear Outwards, C74 5H4 Master's Declaration, C 13: Part A~General 586

Master's Declaration, C 13: Part B-Stores 587

Passenger Return, PAS 15 594

Maritime Declaration of Health 597-59H Light Dues Certificate 634

Page

Preface v

Acknowledgements vii

Author's Notes viii

CHAPTER I. Information about Law 1

2 Liens, Contracts, Arbitration and Agency 57

3 The Ship 90

4 Master and Crew 157

5 Log Books, Protests and other Records 269

6 Accommodation, Provisions and Water, Health and Hygiene 293

7 Safety, Seaworthiness, and Public Welfare : 316

8 Carriage of Passengers 467

9 The Shipment, Carriage and Delivery of Goods 478

10 Procedures on Arrival at and on Departure from a Port 581

II. Wreck and Salvage 601

12 Lighterage, Towage and Pilotage 615

13 Lighthouses and Light Dues 633

14 Marine Insurance and Average 640

15 Limitation of Liability of Shipowners and Others 699

16 Some Government Department and other Institutions concerned with Shipping and Seafarers 708

17 Glossary and Terms and List of Abbreviations of Shipping Terms 719

18 Calculations 732

APPENDIX I Carriage of Goods by Sea Act, 1971 770

II Harter Act, 1893 777

Ill York-Antwerp Rules, 1974 779

IV Lloyd's Marine Policy 785

Institute Time Clauses, Hulls 789

Institute War and Strikes Clauses (Hulls-Time) 794

V Institute Cargo Clauses (A) 795

Institute Cargo Clauses (B) 797

Institute Cargo Clauses (C) 799

VI Institute Warranties 801

VII Lloyd's Standard Form of Salvage Agreement 802

VIII Lloyd's Average Bond 808

IX Lloyd's Form of General Average Deposit Receipt : 810

X The Clauses of the Uniform General Charter (Gencon) 81r XI The Clauses of the BIMCO Uniform Time Charter (Baltime 1939) , 815

xi

xii BUSINESS AND LA W FOR THE SHIPMASTER

XII The Clauses of a Tanker Voyage Charter Party

(INTERTANKVOY 76) 822

Bill of Lading (INTANKBILL 78) 831

XIII The Clauses of a Tanker Time Charter-party 834

XIV The Clauses of a Liner Bill of Lading 848

Form of Sea Waybill 854

XV Test Questions 855

XVI DTP International Maritime Agreements and Legal Knowledge Syllabus (Extra Master's Examination) 866

XVII List of Forms 868

Index 870

Introduction. Throughout this book references will have to be made

to certain Acts of Parliament and to numerous rules and regulations That being so, it would seem that no apology is needed for beginning with a brief account of how our laws are made, administered and enforced, together with some explanation of those legal terms which are so often being brought to the notice of shipmasters and their officers

Readers should understand that this has not been written by a lawyer and it is not intended for students of law who have at their disposal a full range of excellent text-books written by highly qualified law experts The purpose of this opening chapter is simply to place at the disposal of young ship masters and those who aspire to command some information about law which may assist them to a better understanding of the many problems they may be faced with in the course of their careers Teaching experience over a long period has convinced the author that a lack of at least some knowledge of this kind can be a considerable handicap whilst, on the other hand, it seems highly probable that those who are better informed will be likely to recognise more readily the circumstances in which assistance from a qualified legal adviser is really necessary That is the answer to any possible criticism to the effect that learning about the law might, to misquote the title of a well-known book, tempt "every man to be his own lawyer"-a possibly disastrous policy

It is hardly necessary to add that no sympathy for "sea lawyers" is

Making of Law. Reference to Appendix I of this book will show that the preamble to the Carriage of Goods by Sea Act, 1971, is conc1ud~d by the words: "Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and

by the authority of the same, as follows " Then follow (he various sections of the Act and the appended Schedule of Rules

Although the theory of English law is that all justice proceeds from the Sovereign, this is a reminder-though one is scarcely needed-that

2 BUSINESS AND LAW FOR THE SHIPMASTER

the reigning monarch cannot make laws by himself but is obliged to

have the advice and consent of Parliament and to give his Royal Assent

to all Acts of Parliament The Lords Spiritual are the archbishops and

some of the bishops, whilst the Lords Temporal are the hereditary and

the life peers, and they collectively form the House of Lords The

representatives of the various parliamentary constituencies throughout

England, Scotland and Northern Ireland England for this purpose,

includes Wales Although Scotland sends members of Parliament to

the House of Commons, Scottish law is different from English law, and

in many respects the country is governed differently Northern Ireland

not only sends members of Parliament to the House of Commons, but

also normally has a Parliament of its own (The Stormont) which,

owing to the current state of emergency in the province, is for the time

being in abeyance

The law which the courts have to interpret, and upon which the

rights of individuals are founded, consists of the Common Law of

England, the Rules of Equity, and the Statute Law

The Common Law This consists of the law which has developed

from and been founded upon ancient usage or Custom of the Realm as

recognised by tbe courts In their decisions, the courts professed to be

declaring and explaining the Common Law as it had always existed,

but in practice their decisions often created the law and established

precedents for future guidance In other words, cases were decided in

accordance with the manner in which similar cases had been decided in

the past Hence, Common Law is referred to as "Case Law" or "Law of

Precedent" and it is binding on every court having a jurisdiction

inferior to that of the court which gave the original decision Even

courts of equal jurisdiction usually follow the earlier decision,

particularly if it is of long standing and has never been questioned

Much Common Law has, in relatively recent times, been incorporated

into statutes passed by Parliament For example, the Marine Insurance

Act, 1906, to which reference is made in Chapter 14, did not create any

new law but merely codified the then existing law

Rules of Equity Since the Common Law was understood to be

based entirely on custom and precedent, in order to bring an action at

Common Law, it was necessary to show that the cause of complaint

was governed by some established precedent or custom, failing which

the Common Law courts could give no remedy Because of this there

arose a special class of pleaders, whose particular skill consisted of

drafting the form of a plaint so that it should come within the scope of

some precedent However, there was always a fiction that the

Sovereign, as the fount of all justice, was in possession of certain

application of which he was able to mitigate the harshness of the

Common Law and give relief where none was available at CommonLaw Such principles were administrated by the King's Chancery by theChancellor and his assistants who, being ecclesiastics, actually appliedthe rules of Roman Law in which they were all well versed These ruleswere the rules of Equity and were supplementary to, rather thancontradictory of, the rules of Common Law Various Judicature Acts,consolidated by the Supreme Court of Judicature Act, 1925, havediminished the importance of the distinction between Courts of Lawand Courts of Equity, although a distinction between law and equitystill remains Today the Common Law Courts are able to giveequitable relief and the Chancery Division of the High Court can giveCommon Law remedies That is to say that the Judicature Acts haveabolished a system of having separate courts of law and equity andhave provided for the convenient administration of both in the onecourt To take a simple illustration of the distinction between law andequity, consider the example of a trust where property has beenconveyed to one person to be held in trust by him for another TheCommon Law says that A is the owner of the property Equitysupplements the law by saying that whilst it is a fact that A is the legalowner, he holds the property on trust for B Obviously, the two sets ofrights, legal and equitable, can be administered just as well in one court

as in two A "bond" provides a further example A bond is a promiseunder seal to pay a sum of money as a penalty for the non-performance

of some condition which is the real object of the bond At CommonLaw, the entire sum named was held to be payable on breach of thecondition; but at Equity, no more could be recovered than the amount

of the damage actually sustained by the breach of the condition, andthis is all that can now be recovered

Statute Law This consists of the various Acts of Parliamentwhich are passed from time to time These may create new law or mayeither declare or overrule the existing Common Law

In the sphere of private law there are three classes of statutes ofparticular importance viz.:-

1 The type of statute such as the Marine Insurance Act 1906,which takes a branch of the law developed by a long series of courtdecisions and casts the outcome of a mass of cases into the form ofprinciples set out in the sections of an Act of Parliament

2 Statutes such as the Conveyancing Act, 1881, which aimed atcodifying the labours of conveyancers by importing into all documents

of a certain class the provisions which are common form in all welldrawn instruments of that class

3 The statute which deals with an isolated point of private lawwhere, for instance, a rule has become established by court decisio{lswhich ISrecognised to work injustice but which cannot be altered 6ythe courts in view of the doctrine of binding precedent

Statute has played a considerable part in the development of

4 BUSINESS AND LAW FOR THE SHIPMASTER

private law, but it is in the field of public law that its action is most in

evidence Modern social services would be impossible without the

existence of those new public authorities with powers fat' more

extensive than the prerogative powers allowed to the Government by

Common Law It was inevitable, therefore, that Acts of Parliament

should have appeared, one after another, in rapid succession during the

nineteenth and twentieth centuries

Many Acts of Parliament are extremely complicated, and some

consideration will now be given to the manner in which an Act comes

into being

Bills may be rejected by Parliament, and those that are passed are

frequently amended during their passage through Parliament

However, Parliament does not itself draft the bills which it considers

Generally, statutes amending private law have been drafted by

distinguished lawyers, sometimes on their own initiative, though more

frequently at the instance of the Chancellor or of a committee which

has reported in favour of a change in the law Most of the more recent

statutes which deal with public law, on the other hand, have been

drafted by a body of civil servants called the Parliamentary Counsel to

the Treasury, working in collaboration with the civil servants of the

particular ministry concerned The "Bill", which has put into a proper

form the suggestions originally made for a new Act of Parliament, is

concerned and certain other members of his party, whose names will

appear on the back of the bill to signify their approval of it It is then

given what is called a "first reading", which means that it is printed and

made available for all members of Parliament to consider In course of

time it comes forward for a "second reading", at which stage the

Minister will address the House to explain the bill and the reasons for

wanting it passed It is then debated under the chairmanship of the

Speaker and put to the vote Assuming that a majority of the members

of the House of Commons vote in favour of the bill, it will then be

referred to Committee The Committee may be the whole House of

Commons sitting in Committee, or a smaller number of members

chosen from the different parties in the House in proportion to the

strength of each party The function of the Committee is to consider

the bill clause by clause, but there may be an arrangement known as the

"guillotine" limiting the time for discussion of any clause The bill

having been considered in detail in Committee, with or without

additions or amendments, it is then reported to the House of

Commons After the report, it is given a "third reading" and then sent

to the House of Lords

Procedure in the House of Lords is different from that in the House

of Commons, but all that need be said here is that if the former decide

to make changes in the bill, they could send it back in its altered form

to the House of Commons who might accept the changes or make

other suggestions and ask the House of Lords to accept those If

agreement between two Houses cannot be reached the HOllse ofCommons might wait until the next Session and send the bill again tothe Lords If by sending up a bill three times in three successiveSessions the House of Commons keeps on asking for it, the bill willbecome law, even though the House of Lords rejects it every time.Thus, although the House of Lords can delay a bill becoming law, theycannot in the long run prevent it

The final stage before a bill becomes law is the receiving of theRoyal Assent This is quite formal and is usually given by the Queensigning a Commission telling three members of the House of Lords toassent on Her Majesty's behalf They send for the Commons to attend

in the House of Lords where the former are told "La Reine Ie veult"(The Queen wills it)

In the case of a Money Bill the House of Lords has no power toalter or delay it The House of Commons alone is the body whichpasses Acts of Parliament for raising taxes Hence, the preamble to aFinance Act is worded in a special way and the Royal Assent takes adifferent and more elaborate form compared with that quoted above

Regulations Many modern Acts of Parliament deal with matters

so complex that it would be impossible for Parliament to devotesufficient time to the arrangement of all details Accordingly, a practicehas grown up whereby an Act authorises the appropriate Minister tomake regulations about details; and if any person breaks one or other

of those regulations, he will have committed an offence in just the sameway as if he had been in breach of the Act itself Regulations madepursuant to Acts of Parliament are issued in the form of StatutoryInstruments and there are in force many thousands of them This willnot be surprising to anyone who has considered, for example, theMerchant Shipping Act, 1979 Whilst Parliament is, quite rightlydeeply concerned with the general principles of safety of life at sea, it is

no more than logical to accept that the regulation concerning, say, thefrequency of the testing of ships' reserve radio transmitters should beleft to the recommendation of the appropriate civil servants of the

Courts of Law The English Courts of Law are divided broadlyinto criminal courts and civil courts, though there is some overlappingwhich will be apparent from what follows

Metropolitan Police Force was created by an Act of Parliament andplaced under the direct control of the Home Secretary A few yearslater, the Municipal Corporations Act provided for the establishment

in municipal boroughs of a force of constables appointed by and partl/under the authority of a Watch Committee of the borough council, and

at about the same time the City of London acquired its own police

6 BUSINESS AND LAW FOR THE SHIPMASTER

force In 1856 the establishment of a similar force in each county was

made obligatory on the county justices, though in 1888 control of

county police passed out of the hands of the justices and was vested in a

Standing Joint Committee consisting of (a)representatives of the then

newly-formed county councils and (b) representatives of Quarter

Sessions The Home Secretary has no direct control over county and

borough police as he still has over the Metropolitan Police, but his

indirect control over them is considerable for the reason that a large

proportion of the cost of their maintenance is supplied by grants from

the central government, which can be withheld in the event of

standards of efficiency falling below what is required by the Home

Office Moreover, since ]9]9 the Home Secretary has been empowered

to make the necessary regulations to ensure uniformity in the pay and

conditions of service in all police forces throughout England and

Wales Whilst the chief duty of the police is to prevent the commission

of crimes and apprehend suspected criminals, it is well known that they

have many additional duties, not the least of which nowadays is traffic

control In recent years a number of borough police forces have been

merged in the surrounding or adjacent county force as part of a policy

to reduce the number of separate constabularies in order to increase

efficiency of police organisation throughout the country

A crime may be defined as an act forbidden by law under pain of

punishment, being an offence or injury which is not only a wrong to an

individual but a wrong done to the community Thus, a crime is

distinguished from a tort, which is an injury or wrong suffered by one

person at the hands of another, irrespective of any contract between

them Breach of contract is further distinguished by there being a

contract in existence If A deliberately and maliciously breaks B's shop

window, that is a crime If A carelessly and accidentally breaks B's

window, that is a tort If A enters into a contract to supply B with

certain goods on or before a certain date and, the contract not being

frustrated, he fails to fulfil his bargain, then there is a breach of

contract Torts and breaches of contract which may be subject to

actions for damages are matters for civil proceedings and will be

referred to again later

Crimes in English law are divisible into indictable offences and

summary offences The former, which admit of trial by jury, were,

prior to ]967, further subdivided into felonies and misdemeanours The •

Crimina] Law Act ]967, however, abolished this distinction Power to

arrest a felon was given not only to constables but also to private

citizens but in the case of misdemeanour no one could arrest an

offender without a magistrate's warrant except in certain particular

cases Under the new Act powers of summary arrest apply to offences

for which the sentence is fixed by law or for which a person (not

previously convicted) may under or by virtue of any enactment be

sentenced to imprisonment for a term of five years and to attempts to

commit any such offence Any such offence or attempt is know as an

"arrestab]e offence" Any person may arrest without warrant anyonewho is, or with reasonable cause is suspected to be, in the act ofcommitting an arrestable offence Where an arrestable offence has beencommitted any person may arrest· without warrant anyone who isreasonably suspected to be guilty of the offence Similar powers ofarrest are, of course, given to a constable who is further empowered toenter (if need be, by force) and sc;~~clrany place where the offender isreas~)Dably suspected to be A ·person may use such force as isreasonable in the circumstances in the prevention of crime, or ineffecting or assisting in the lawful arrest of offenders, suspectedoffenders, or persons unlawfully at large Penalties, consisting ofimprisonment for a number of years,,:ean be imposed on persons foundguilty of assisting offenders There are also penalties for concealingoffences, giving false information and causing wasteful employment ofthe police

The first step in the prosecution of any offence, indictable orsummary, is normally either the placing of an information before amagistrate by some person acquainted with the facts who mayor maynot be the injured party, or the arrest of the accused by a constable or aprivate individual without any preliminary information followed by acharge against the arrested person when in custody On receipt of theinformation the magistrate generally issues a summons requiring theaccused to attend, but in the case of a grave charge made under oath hemay issue a warrant to a constable for the accused to be arrested andtaken into custody In the case of a non-indictable offence, enforce-ment of attendance by mere summons is most frequent At one time·there were strict rules of venue under which the accused had to be tried

in the county where the crime was alleged to have been committed, butnow-a-days he can be tried in"the county or place where he is held incustody

Magistrate's Court of Summary Jurisdiction This is otherwiseknown as a Court of Petty Sessions, or a Police Court, but the lattername is apt to be misleading because the primary fJlnction of the police

is to act in their capacity as witnesses The Police Court in any town isquite distinct froq} the Police Station Except in London and somelarge towns, administration of justice in these courts is stilI in the hands

of justices of the peace who, with certain exceptions, are appointed bythe Crown on the advice of the Lord Chancellor-the head of alljudges, magistrates and lawyers In selecting county justices the LordChancellor usually accepts the recommendation of the Lord Lieuten-ant of the county, who is assisted by a selection committee In the case

of borough justices recommeb.dations are received from the advisorycommittee of the borough It should be mentioned that many personswho have no intention of sitting as magistrates are appointed justices inrecognition of their services to the community Despite the importlnce

of the work of those who do sit, J.P.'s are not required to have anexpert knowledge of the law and they receive no remuneration for the

8 BUSINESS AND LAW FOR THE SHIPMASTER

work they do It was only as recently as 1949, that powers were given to

pay them their expenses, and even more recently that provision was

made for all J.P.'s to have an adequte amount of legal training It is

now considered desirable that more good candidates for appointment

to the bench, should be selected from the wage-eatning sections of the

population, and with this object in view the magistrates have become

entitled to subsistence allowances in certain circumstances and

allowances for loss of earnings Their retiring age has been lowered

from 75 to 70 There must always be at least two J.P.'s to hear a case,

one of whom acts as chairman and takes the lead A Clerk of Court,

who is normally a qualified solicitor, is present to assist the justices and

inform them on points of law In London a system has long been

established of having qualified and salaried magistrates known as

"stipendiaries" The Metropolitan Police Courts are staffed by

magistrates, each of whom sits alone with powers that elsewhere can be

exercised only by two lay justices sitting together This system has

never been compulsorily extended to the rest of the country, but any

borough or populous urban district willing to pay his salary may

obtain the appointment by the Crown of a barrister of at least seven

years' standi.1g to serve as a stipendiary magistrate for the district

Proceedings in a magistrate's court differ according to whether the

accused is to be tried summarily or by a jury

For procedural purposes the Criminal Law Act 1977 further

classified offences by establishing the following modes of

trial:-(i) offences triable only summarily;

(ii) offences triable either summarily or on indictment;

(ill) offences triable only on indictment

Summary offences, which are the more numerous and less serious

than indictable offences, are tried by magistrates If the defendant

pleads guilty, the court may convict him without hearing evidence

Attendance is enforced, as previously stated, by summons or arrest,

with or without warrant After hearing each side and witnesses, the

magistrates can convict or discharge the defendant On conviction they

can punish the defendant by imposing a fine, or a short term of

imprisonment; or they can defer sentence for up to six months to take

account of the conduct of the defendant after conviction; or they can

commit the defendant to the Crown Court for sentence

The mode of trial for offences triable either way is laid down in the

11980 Act Magistrates listen to representations made to them by each

side and then take account of the nature of the case, whether the

circumstances make the case one of a serious character, the punishment

they have power to inflict and any other circumstances which appear to

make it more suitable for trial one way or the other If the magistrates

decide that the case should be tried summarily, they explain this to the

defendant and ask him whether he consents to be tried summarily or

wishes to be tried by jury If he agrees to be tried summarily they

proceed with summary trial; if he does not agree, they consider the

Magistrates' Courts Act 1980

evidence as examining magistrates, and if satisfied that it is sufficient,

proceedings for an indictable offence under the M.S Acts can becommenced at any time after the offence was committed Proceedingsfor summary offences should be started within six months of theoffence being committed, or if one or both parties are out of the U.K.during that time, within two months after they both arrive and arewithin the U.K and so that summary conviction is obtained withinthree years of the offence being committed

Where the accused is to be tried on indictment, the magistratesconduct a preliminary examination to decide whether there is a strongenough case to justify them in committing the accused for trial Theprocedure is now regulated by the Magistrates' Court Act, 1980 ThisAct makes it essential for the accused to be present at the enquiry and

to have the opportunity of cross-examining the witnesses against him

He may be represented by solicitor or counsel In practice the enquiry

is conducted in public, though this is not necessary The accused is notasked whether he is guilty or not guilty The case is opened by theprosecutor, who will be the private individual who laid the informa-tion, or a police officer if the police initiated the prosecution In eithercase the prosecutor may appear by solicitor or counsel The prosecutorcalls his witnesses to be examined, cross-examined, and re-examined.The clerk to the justices takes down the evidence which, after beingsigned by the witnesses, is read over to the accused Then themagistrates explain to the accused the nature of the charge against him,tell him that he can call his own witnesses and give evidence himself if

he wishes The accused will be warned that if he desires to make astatement, anything he says will be taken down and used in evidence atthe trial Any statement he makes is taken down by the magistrates

He, if he chooses to give evidence, and any witness he may call are thenexamined in the same way as the witnesses for the prosecution, suchevidence being recorded and signed The accused's solicitor or counselmay address the court on his behalf The magistrates, after consideringall the evidence, may decide there is no case for trial; but if they decideotherwise, they will also determine at which particular Crown CO'Urtthe accused should be tried, and whether he should be let out on bailor

be remanded in custody until the date of the trial The granting orwithholding of bail is entirely at the discretion of the justices, butusually when the accused has an established address and is not anotorious character bail will be allowed If bail is refused, thereremains a right of application for it to the Queen's Bench Division ofthe High Court Finally, the magistrates will bind over the prosecutor

to prefer an indictment against the prisoner, and bind over thewitnesses for both parties to attend the trial They may also, inappropriate circumstances, assign legal aid to the accused under ttteLegal Aid Act, 1974 The question of legal aid in criminal proceedingsincluding the provisions as to legal aid orders, the circumstances in

10 BUSINESS AND LAW FOR THE SHIPMASTER

which legal aid may be given, the liability for contributions, the

computation of resources, the payment of costs of legal aid, and many

other relevant matters, is fully dealt with in the above Act

Although the greater proportion of the work done by the justices in

petty sessions is the holding of preliminary examinations and summary

trials, much of it does not come under the heading of "criminal" justice

at all Before the nineteenth century a great part of local government

was in the hands of the justices and, though most of it is now

performed by elected councils, some administrative functions are still

exercised by magistrates Licensing is a case of point Further, some

proceedings taken by J.P.'s are definitely civil proceedings; for

instance, separation or maintenance orders Others, such as

infringe-ments of local bye-laws, are matters not generally regarded as crimes,

although technically subject to criminal proceedings

After an accused has been committed for trial, a bill of indictment is

preferred against him by the prosecutor At this stage, the/issue is

between the Crown and the prisoner-Regina v B not A v B-and Her

Majesty's Attorney-General has power to stop any prosecution by

.entering what is called a nolle prosequi However, the prosecution in

the name of the Queen, is not normally carried on by agents of the

central government but either by private individuals or local chief

constables The Director of Public Prosecutions is an official

appointed to advise private prosecutors and chief constables on the

conduct of cases and to undertake himself the presentation of

important cases on behalf of the State, but only a relatively small

proportion of persons tried on indictment are, in fact, prosecuted by

that official (see page 56) Whoever does prosecute must cause a bill of

indictment to be drawn up, setting out the charges against the accused

The signature of the appropriate officer of the Crown Court converts

the bill of indictment into an indictment which the court can try

All proceedings on indictment are now brought before the Crown

Court A magistrates' court committing a person for trial is required to

specify the place at which he is to be tried having regard to (0) the

convenience of the defence, prosecution and witnesses, (b) the

expediting of the trial, (c) any direction given by or on behalf of the

Lord Chief Justice with the concurrence of the Lord Chancellor

If the defendant or the prosecutor is dissatisfied with the place of

trial as fixed by the magistrates' court he may apply to the Crown •

Court for a direction varying the place of trial and that court having

taken the matter into consideration, may comply or give some other

direction as it thinks fit

The Supreme Court This consists of the Court of Appeal and the

High Court together with Crown Court established by the Courts Act

1971 Sittings of the High Court may be held, and any other business of

the High Court may be conducted, at any place in England or Wales

Subject to rules of court the places at which and the times when, the

High Court sits outside the Royal Courts of Justice are determined in

accordance with directions given by or on behalf of the LordChancellor

The Crown Court All Courts of Assize and Courts of QuarterSessions were abolished by the Courts Act 1971 and are replaced byCrown Courts The Act provides that there shall be a Cr,Qwn Court inEngland and Wales which shall be a superior court of record Thejurisdiction and powers of the Crown Court are exercised by (0) anyjudge of the High Court, or (b) any Circuit judge or Recorder, or (c)

subject to certain provisions a judge of the High Court, Circuit judge orRecorder sitting with justices of the peace

This reform has been described by a former Lord Chancellor as thegreatest in the administration of justice this century, and possibly thegreatest in legal history Courts of Assize began in the reign of Henry IIand quarter sessions go back to the early Middle Ages but, in thesedays of expanding populations frequently shifted away from assizetowns and concentrated in new centres, the vast increase in crime andthe great extension of legal aid put the courts under intense pressure.With so many lengthy contested cases untried~ prisoners were beingkept in gaol for unduly long periods or were waiting on bail· manymonths with prosecutions hanging over their heads Civil cases atassizes were being subjected to mounting delay as it was the practice forjudges to deal with them at the end of their lists From 1966 to 1969 aRoyal Commission headed by Lord Beeching conducted a study whichshowed beyond doubt that the old system was out of date, time wastingand inefficient The Commission therefore proposed a new system ofCrown Courts administered under the Lord Chancellor's Office andsitting at convenient centres of population The Courts Act 1971, whichstemmed from the Beeching report, provides that the Crown Courtwhile normally sitting at designated centres for ease of communica-tions, has power (as stated above) to hear cases anywhere in Englandand Wales

For the purpose of the new Crown Courts England and Wales aredivided into six circuits which conform mainly, though with someadjustments, to the former assize circuits The Crown Courts aredivided into three tiers At "first tier" centres High Court judges trycivil cases as well as the most serious criD;linal cases such as murder,manslaughter and rape According to its seriousness other criminalwork is divided between a new category of Circuit judges and part-timerecorders sitting alone or with not less than two and not more than fourJ.P.'s The Circuit judges referred to are made up of present c:;.ountycourt and Old Bailey judges, the recorders of Liverpool and Manches-ter Crown Courts and former full-time chairmen of quarter sessions.The so-called "second tier" courts can deal with the less serious cases ofmurder, rape, arson, etc., whilst the "third tier" takes over all \hosecriminal cases that were formerly within the jurisdiction of quartersessions

12 BUSINESS AND LAW FOR THE SHIPMASTER

Offences are now classified as

follows:-Class One, which includes treason, murder and genocide, will be

tried by a High Court judge;

Class Two, including manslaughter, rape, sedition, mutiny, piracy

and offences under the Geneva Convention Act, will be tried by a High

Court judge unless released by him to a Circuit judge or recorder;

Class Three, lesser indictable offences, will be tried by a High

Court judge, Circuit judge or recorder; and

Class Four, which includes some indictable offences, and offences

which could have been tried summarily by magistrates, will normally

be tried by a Circuit judge or recorder

Magistrates committing persons for trial, besides being able to specify

the most convenient location of the Crown Court where the cases can be

heard, are also able to indicate that in their view a particular case in Class

Four should be tried by a High Court judge Such cases would include

those where widespread public concern is involved or where the accused

owes a duty to the public

The Courts Act 1971 provides that Her Majesty may from time to time

appoint as Circuit judge, to serve in the Crown Court and county courts,

such qualified persons as may be recommended to Her by the Lord

Chancellor The maximum number shall be such as may be determined

from time to time by the Lord Chancellor with the concurrence of the

Minister for the Civil Service No person shall be qualified to be appointed

a Circuit judge unless he is a barrister of at least ten years' standing or a

Recorder who has held that office for at least five years Subject to certain

exceptions a Circuit judge is required to vacate his office at the end of the

completed year of service in which he attains the age of seventy-two So

long as he holds his office no Circuit judge is permitted to practise as a

barrister or act for any remuneration to himself as arbitrator or referee or

be directly or indirectly concerned as a conveyancer, notary public or

solicitor

The Act also provides that Her Majesty may from time to time appoint

qualified persons to be known as Recorders, to act as part-time judges of

the Crown Court Every such appointment must be of a person

recommended by the Lord Chancellor and no person is qualified unless he

is a barrister or solicitor of at least ten years' standing Neither the initial

term for which a Recorder is appointed nor any extension thereof may

continue after the end of the completed year of service in which the

Recorder attains the age of seventy-two

For the first time in the course of our legal history the way is now open

for solicitors to achieve high judicial office As indicated above, solicitors

as well as barristers are now eligible for appointment to the part-time

recorderships and, after five years of such experience, they can be selected

as full-time Circuit judges

As well as simplifying the structure of the courts the Act is designed to

reduce delays through its fundamental reform of court administration a

unified court service is set up embracing the High Court, Crown Courts

and County Courts under the central control of the Lord Chancellor's

responsible for court buildings, judges' lodgings and other necessaryaccommodation The only exception to this is in the City of Londonwhere the City Corporation continues to provide for the Old Baileyand the Mayor's and City of London Court The latter, which as it wasconstituted before the commencement of the Act has been abolished,still retains its name as the local county court for the City of Londonand now has a reduced jurisdiction confined to county court businessonly

Circuit administrators have been appointed in each of the sixcircuits and they, working with the High Court judges nominated tosupervise each circuit, are responsible to the Lord Chancellor forpreventing the build-up of delays, ensuring that judges are availablewhere needed, organising efficient court services, and arranginginstruction for lay magistrates

The Central Criminal Court ("Old Bailey") This court wasestablished in 1834 as the seat of criminal assizes for the Metropolitanarea and takes trials of indictments of persons committed from pettysessions in London, Middlesex and other parts of south-east England.The judges include the Recorder of London and the Common Serjeant(both of whom became Circuit judges under the 1971 Act), the judge ofthe City of London Court, and the High Court judges To deal moreeffectively with the increasing number of cases tried at this court theOld Bailey building has recently undergone extensive reconstructionand enlargement It is now possible for as many as twelve courts to sitsimultaneously

Crown Court procedure is broadly on the following lines Thedefendant is arraigned at the bar of the court and pleads to theindictment The jury is empanelled and sworn in after their names havebeen read out and the prisoner asked whether he objects to any ofthem Counsel for the prosecution states his case and calls witnesses.Each witness enters the witness box in turn, takes the oath, andanswers questions Counsel for the defence then cross-examines thosewitnesses Counsel for the defence then states his case and calls hiswitnesses, including the defendant himself if he chooses to giveevidence Counsel for the prosecution then cross-examines thewitnesses for the defence Copies of depositions made by witnesses atthe preliminary enquiry will have been supplied to the court and to theprisoner, but, except in the case of unavoidable absence of witnesses,such depositions cannot be used at the trial; the witnesses must becalled in person Counsel for the prosecution is not permitted tocomment on the fact that the prisoner has not chosen to submit himself

to cross-examination, but the judge or recorder may do so in hissumming up When the evidence is completed and the speeches ofcounsel are ended the summing up takes place and the jury retire to

14 BUSINESS AND LAW FOR THE SHIPMASTER

consider their verdict Formerly the verdict had to be unanimous but

the Criminal Justice Act 1967 makes majority verdicts allowable

although a special procedure is necessary to prevent it becoming

known that a "not guilty" verdict was by a majority In all criminal

cases a verdict of IO jurors can be accepted from juries of 12 or II, and

the verdict of 9 if there are 10 jurors Should the jury or the necessary

majority of them fail to agree, they will be discharged and the prisoner

remanded for a new trial The Attorney-General may, however enter a

nolle prosequi When the jury is ready they are asked whether they find

the prisoner guilty or not guilty, and the foreman of the jury replies on

their behalf If a verdict of guilty is returned, then-and not till

then-the judge or recorder calls for the police officer in charge of the

case and asks for the previous history of the defendant Finally

sentence is given The punishment of a person found guilty of a

criminal offence may be imprisonment or fine, but in some cases,

particularly where the prisoner is a first offender, he may be given a

suspended sentence, dIscharged absolutely or conditionally, or placed

on probation Where a person who has attained the age of seventeen is

convicted of an offence punishable with imprisonment the court,

instead of dealing with him in any other way, may make an order,

referred to as a "community service order" requiring him to perform

unpaid work for such number of hours (being in the aggregate not less

than forty nor more than two hundred and forty) as may be specified in

the order The court may not make a community service order unless

the offender consents and the court has been notified by the Secretary

of State that arrangements exist for persons who reside in the petty

sessions area in which the offender resides to perform work under such

orders The court must also be satisfied from a probation officer's

report about the offender and his circumstances that he is a suitable

person to perform work under such an order, and that provision can be

made under the arrangements for him to do so

Court of Appeal (Criminal Division) This consists of the Lord

Chief Justice of England, the Lords Justices of Appeal and any judge

of the High Court asked to sit by the Lord Chief Justice In practice,

the Lord Chief Justice and two puisne (or lesser) judges generally

constitute the Court, but in important cases there may be five or even

seven judges The Court has no jurisdiction to hear appeals from petty

sessions or appeals by the Crown against acquittals, but any person

convicted on indictment has absolute right of appeal to this Court on

any question of law and, with the leave of the trial judge or the Judge of

the Court of Appeal, the right to appeal on any question of fact or of

mixed law and fact There is also right of appeal to this Court against a

sentence, provided that the Court gives leave to appeal and the

sentence was one given in the discretion of the trial judge and not a

sentence fixed by statute Unless a substantial miscarriage of justice has

occurred, the Court is not bound to allow the appeal, even though the

appellant may be technically in the right The Court has no power togrant a new trial unless the original trial was completely abortive, and

in the case of an appeal against the sentence the Court may not onlyreduce the sentence, or confirm it, but may also increase it Theestablishment of the Court of Appeal has rendered the use of the royalprerogative of mercy less necessary than it was formerly, but manycases still arise where, on the advice of the Home Secreta'ty, the royalprerogative is exercised and results in either free pardon or mitigation

of sentence

The House of Lords Although the decision of the Court ofAppeal (Criminal Division) is generally final, a further appeal to theHouse of Lords is available to either the Crown or the prisoner,if theAttorney-General certifies that a point of law of exceptional impor-tance is raised

In principle, all the peers of Parliament are eligible to hear appealsbut, in practice, appeals are heard only by the Lords of Appeal inOrdinary These are the Lord Chancellor and nine salaried life-peers'Who hold, or have held, high judicial office It is customary for two ofthem to be Scottish lawyers, on account of the fact that the Househears appeals from the Court of Session in Scotland Appeals from theCourt of Appeal in Northern Ireland are also brought to the House.Arguments in appeals are heard in a Committee Room, though thedecision of the House is given in the chamber and observes the forms of

a sitting A quorum of three is essential Judgments are couched in theform of speeches addressed to the House and at the conclusion of themthe Chancellor or the senior Law Lord present puts the matter formally

to the vote of the House (That is why a House of Lords decision- isalways cited in court as "the speech of Lord j

Juvenile Courts These are magistrates' courts which exercise diction over crimes committed by juvenile offenders and other mattersrelating to persons under seventeen A juvenile court· consists of threemagistrates drawn from a special panel, at least one of whom must ~ awoman The general public are not allowed in court and proceedingsare generally conducted in a more iriformal manner, and as far aspossible in a location different from other courts Unless the courtconsiders it unreasonable to do so, it can insist on the attendance' of theparent or guardian at all stages of the proceedings

juris-At present, a child under the age of ten cannot be guilty of anyoffence, and children aged ten or: under fourteen ,are presumedinnocent unless the prosecution shows that they committed the effenceand also knew that they were doing wrong

When a juvenile is charged with homicide he must be committed fortrial A· juvenile aged fourteen to sixteen charged with an offencepunishable by fourteen years imprisonment (e.g arson or robbery)must be committed for trial if the magistrates consider that if he is

16 BUSINESS AND LAW FOR THE SHIPMASTER

found guilty, he should be detained for a long period If a juvenile is

jointly charged with someone aged seventeen or older, he can be

committed for trial if the magistrates consider the offenders should be

tried together In all other cases juvenile offenders must be tried

summarily

A juvenile offender cannot be sentenced to imprisonment, but

where he has been found guilty of an offence normally punishable with

imprisonment in the case of adults, he can be sentenced to youth

custody (over fifteen years old), or be detained in a detention centre

(males over fourteen years old), or to do unpaid work under a

community service order (over sixteen years old) or to lose his leisure

by attending an attendance centre (over ten years old), or be put in the

care of a named local authority under a care order Depending on the

circumstances alternative orders may be made, or the offender fined

and/ or made to pay compensation

Civil Courts The principal civil courts are the County Courts, the

Supreme Court of Judicature with its two branches, the High Court of

Justice and the Court of Appeal, and the House of Lords

County Courts The name is of great antiquity, but these courts

were instituted in their present form in 1846, since when, however,

various Acts of Parliament have added considerably to their original

jurisdiction Such jurisdiction now

includes:-1 Actions founded on contract or tort where the debt or damages

claimed does not exceed £5,000 unless the parties agree to waive the

limit

2 Actions for the recovery of land or in which the title to an

hereditament is in question where neither annual value nor rent

payable exceeds £1,000

3 An equity jurisdiction up to £30,000 in respect of claims under

various heads

4 In some county courts an admiralty jurisdiction mostly limited

to claims not exceeding £5,000, but in salvage claims up to £15,000

5 Probate jurisdiction where personal estate is estimated to be less

than £30,000

6 Arbitration,if the sum does not exceed £500

Any common law, equity, or admiralty proceedings otherwise

within the jurisdiction of the Court can, if the parties agree, be

determined in a county court, even though the sum in dispute exceeds

the statutory minimum An action commenced in the High Court

which might have been brought in a county court can be transferred by

the former to the latter Further, if an action within the jurisdiction of a

county court is fought out in the High Court, the successful litigant

may be deprived of costs or at least recover costs only on the county

court scale

The jurisdiction mentioned above accounts for only a portion of the

volume of work which comes before county courts, as they are entrustedwith special jurisdiction in a great variety of matters under numerous Acts

of Parliament The principal county courts possess local jurisdiction inbankruptcy (unlimited) and in the windings-up of companies wherepaid-up captital does not exceed £120,000

Proceedings are fairly simple There need be no pleadings, parties can

be represented by solicitors and not by counsel, and there is rarely ajury.Appeals go before the divisional courts of the High Court or, except incertain cases, may go direct to the Court of Appeal

The County court judge presides in each court in his district Inaddition, each county court has its registrar, who is a solicitor of at leastseven years' standing The registrar, who has a staff of assistants underhim, acts as a clerk of the court, entering all plaints and recording andexecuting the judgments The County Courts Act 1984, sect 5 providesthat every Circuit judge shall, by virtue of his office be capable of sitting asajudge for any county court district in England and Wales, and the LordChancellor shall assign one or more Circuit judges to each district andmay from time to time vary the assignment of Circuit judges among thedistricts Subject to any directions given by or on behalf of the LordChancellor in any case where more than one Circuit judge is assigned to adistrict under the above provision, any function conferred by or under theCounty Courts Act 1984 on the judge for a district may be exercised by any

of the Circuit judges for the time being assigned to that district.The following, that is-

every judge of the Court of Appeal,every judge of the High Court,every Recorder,

shall by virtue of his office, be capable of sitting as ajudge for any countycourt district in England and Wales and if he consents to do so shall sit as ajudge at such times and on such occasions as the Lord Chancellorconsiders desirable

Notwithstanding that he is not for the time being assigned to aparticular district, a Circuit judge-

(0) shall sit as a judge of that district at such times and on such

(b) may sit as ajudge ofthat district in any case where it appears to himthat the judge of that district is not, or none of the judges of thatdistrict is, available to deal with the case

All appointments of temporary and deputy judges of county courtshave been terminated

Special provision is made for small claims not exceeding £500 Asimplified informal procedure is followed with the registrar acting asarbitrator

•The High Court of Justice The High Court is part of the SupremeCourt of Justice which now consists of the Court of Appeal, the HighCourt and the Crown Court Following the passing of the Administration

18 BUSINESS AND LAW FOR THE SHIPMASTER

of Justice Act 1970 the High Court was re-arranged into the Queen's

Bench Division, the Chancery Division and the Family Division The

High Court sits in London at the Royal Courts of Justice, but there are

also High Court sittings in Circuit Courts at twenty-four provincial

centres where High Court judges are present continuously or for long

periods

Queen's Bench Division The Lord Chief Justice of England and a

number of puisne judges constitute this division, which deals with most

business actions, including actions arising out of contract or tort A

special court known as the Commercial Court sits in the Queen's Bench

Division to hear cases arising out of the ordinary transactions of

merchants and traders, including the construction of documents (such

as bills of lading, charter-parties, insurance policies, etc.), mercantile

usages, and so on Procedure is of a more summary nature than in the

Queen's Benc~ Division proper, and a decision as to whether a case

shall go to this Court is made by the Master Admiralty jurisdiction is

part of the work of the Division where an Admiralty Court staffed by

High Court puisne judges nominated by the Lord Chancellor deals

with actions related to shipping, principally damages arising out of

collision cases and salvage awards These arrangements ensure that

shipping and commercial matters are dealt with by specialist judges

and are not just part of the ordinary work of the division to be taken by

any judge who is available There are eight Masters of the Queen's

Bench Divison of the High Court, of whom the senior is the Queen's

Remembrancer (head of the official staff of the Revenue side off the

Queen's Bench Division) Another is the Master of the Crown Office

The functions of the Masters, who are all barristers, are various; one of

them being to sit in chambers in the Division and deal (subject to an

appeal to a judge) with the preliminary stages in an action

Except in special cases, it is within the discretion of the Court

whether a trial in the Queen's Bench Division shall be with or without a

jury, and the general tendency is for such discretion to be exercised

against trial by jury In cases of libel, slander, malicious prosecution,

false imprisonment, however, a jury must be granted if either side

applies for it Also, whenever fraud is alleged, trial must be by jury if

the party against whom it is alleged applies for it But even in these

cases a jury will not be granted if the Court thinks that prolonged

investigations, that cannot be conventiently made by a jury, are likely

to be involved

Chancery Division The Lord Chancellor and a number of puisne

judges constitute the Chancery Division, which deals with litigation in

respect of trusts, partnerships, patents and copyrights, as well as other

matters Bankruptcy proceedings and the winding-up of companies are

also within the jurisdiction of this Division There are eight Masters,

who are solicitors appointed by the Lord Chancellor Their functions

include dealing with the preliminary stages of proceedings and ~heaccounts and enquiries therein entailed They do not have theindependent jurisdiction, possessed in certain cases by the Masters ofthe Quetn's Bench Division, but make orders in the name of the judge,

so that any party can claim to bring any point before the judge himself.Actions brought in this Division are tried by a judge without jury

Family Division In this Division of the High Court there is aPresident assisted by a number of puisne judges It deals with all HighCourt business which concerns marriage, family property and children,including adoption and wardship

Divisonal Courts A Divisional Court is a court consisting of two

or more judges of the High Court of Justice to hear and determineappeals from Judges in Chambers, appeals from inferior tribunals, andotherIIl~rs defined by the Judicature Acts It should be noted that inall other cases High Court Judges act alone

Court of Appeal (Civil Division) This court consists of theMaster of the Rolls as President, the Lord Chief Justice, the President

of the Family Division and a number of other judges These are known

as the Lords Justices of Appeal The court deals with appeals on law orfact from any division of the High Court, from a County Court, orfrom orders of Judges in Chambers on matters which have arisenbefore trial The court may uphold or reverse the decision of the lowercourt, or substitute another judgement In some circumstances it mayorder a new trial Three Lords Justices are usually necessary to form acourt, but sometimes five or seven judges sit

House of Lords This is the highest Court of Justice, thecomposition of which has already been referred to To this Court allfinal appea1s are taken from the Court of Appeal in England, the Court

of Session in Scotland, and the Court of Appeal in Northern Ireland

An appeal can be brought only with the leave of either the Court ofAppeal or the House of Lords As previously mentioned, at least thrteLaw Lords are necessary to form a court If, when there are more thanthree, they are evenly divided in opinion, the decision given in theCourt of Appeal will prevail

The Privy Council There is another tribunal known as theJudicial Committee of the Privy Coun~which acts as the SupremeJudicial Authority of dependencies in the Commonwealth In the form

of petitions to the Crown appeals may be brought to the Committeefrom Consular Courts, Courts of Vice-Admiralty and the Courts ofcertain members of the Commonwealth The jurisdiction of the PrivyCouncil in relation to domestic matters includes consideration ofpetitions for the granting of charters incorporating new boroughs, and

20 BUSINESS AND LAW FOR THE SHIPMASTER

the hearing of final appeals in ecclesiastical cases Further, the Crown

may specially refer to the Judicial Committee any matter which it

thinks fit for such a reference The Committee is composed largely of

the Lords of Appeal in Ordinary but those Dominion members of the

Committee who happen to be in London from time to time may form

part of the board Judges of the High Court and the Scottish Court of

Session are often made Privy Councillors on their retirement from the

bench and give their services voluntarily, when required, as Members

of the Committee A quorum of three is essential

Court of Justice ofthe European Community On 1 January 1973

the United Kingdom became a member of the European Community

make orders and regulations to give effect to the country's obligations

as a member of the Community; and it alters existing United Kingdom

law to take account of specific Community obligations

Community law is normally applied by the domestic courts of the

member countries so that the English, Scottish and Northern Ireland

legal systems remain intact and their courts continue to operate as

before In the event of conflict however, Community law prevails over

domestic law by virtue of the European Communities Act 1972

Under the Community treaties the Court of Justice ofthe European

Community interprets and adjudicates on the meanings of the treaties

and of any measures taken under them by the Council of Ministers and

the Commission It hears complaints and appeals brought by or against

Community institutions, member states or individuals, and it gives

preliminary rulings on questions referred to it by courts in the member

states Therefore questions of validity and interpretation may be

referred to it by United Kingdom courts and they must be so referred

when the question arises in a court or tribunal from which there is no

appeal The Court of Justice makes then a preliminary ruling on the

question which is binding on the national court which is left to apply

the law and decide the case The Court of Justice has nine judges

assisted by four advocates-general

Courts Martial These are courts convened within the armed

forces to try offences against service law Service law regulates the

conduct of the armed forces its main sources being the Naval Discipline

Act 1957, the Army Act 1955 and the Air Force Act 1955, These three

acts require annual renewal and this is achieved by passing an Armed

Forces Act every fifth year which enables them to continue for one year

and provides for them to be continued for each of the following four

years by an Order in Council approved by resolution of each House ofParliament A court martial consists of from three to five servingofficers who sit without a jury and who are advised by a legallyqualified judge advocate The Courts Martial Appeals Court exerciseappellate jurisdiction over Naval, Military and Air Force CourtsMartial Applications for leave to appeal must be made to theRegistrar The Court must allow an appeal if they think the finding ofthe Court Martial is unreasonable, or cannot be supported by theevidence, or is wrong in law, or if there has been a miscarriage ofjustice The Court consists of three judges of the Queen's BenchDivision of the High Court and procedure is similar to that of theCourt of Appeal (Criminal Division)

Coroners' Courts The holding of a coroner's inquest, that is theinvestigation of the circumstances of death, is the function of acoroner's court which, though it may be held in an ordinary PoliceCourt, has nothing to do with Petty Sessions A Coroner is a salariedofficial appointed by a Town or County Council He must be abarrister or solicitor or a qualified medical practioner of not less thanfive yein standing When he is informed that a dead body is lyingwithin his jurisdiction and he has reasonable cause to suspect that theperson died a violent or unnatural death, or died suddenly fromunknown causes, or died in prison, or died in such other circumstances

as to require an inquest, it is his duty to hold an inquest In certaincases a jury must be summoned These are (1) when the death occurred

in prison (2) when the death was due to an accident, (3) when death wasdue to a notifiable disease, (4) when death occurred in circumstancesprejudicial to public health or public safety and (5) when deathoccurred while the deceased was in police custody or resulted from aninjury caused by a police officer in the purported execution of his duty

In all other cases, although a jury may not be summoned, the coronerhas power to sit without a jury A coroner's jury consists of not lessthan seven nor more than eleven "good and lawful men" (whichnowadays includes women), and, although the inquiry is, public, it h~been held that a person having no interest in the case may be expelled.After hearing the evidence, the jury give their verdict In the case offailure to agree, so long as the minority is not more than two, themajority verdict is accepted Otherwise the coroner must discharge thejury, summon another, and proceed as though the former proceedingshad not taken place

An inquest must be held in the case of a sudden death whose cause

is unknown or suspicious, a death of a person in prison, or when adeath is caused by violence or unnatural means The criminal,jurisdiction of a Coroner's Court has been abolished Verdicts ofmurder or manslaughter have been replaced by "killed unlawfully" and

a coroner can no longer commit a person for trial

22 BUSINESS AND LAW FOR THE SHIPMASTER

JURIES

The jury is a very old English institution but, as stated earlier, trial

by jury in civil cases has been very much on the decline in recent years

The function of the jury in a criminal case is to decide whether the

prisoner is guilty or not guilty, and in a civil case to decide questions of

fact In a civil case, if the trial is by jury, the judge at the conclusion of

the hearing, sums up the facts to them and gives them the necessary

directions as to the law applicable to the case The jury may be asked to

give a general verdict for one side or the other or, in a complicated case,

a special verdict on particular questions of fact left to them by the

judge When the jury have returned their verdict, the judge has to give

judgment

A county court jury consists of eight persons Elsewhere the

number of jurors is generally twelve, with the exception of the

coroner's jury mentioned above

Every person, unless he is ineligible, disqualified or excusable as of

right, is qualified to serve as a juror and is liable to attend for jury

servi~e when summoned if(0) he is for the time being registered as a

parliamentary or local government elector and is not less than eighteen

nor more than sixty-five years of age; and (b) he has been ordinarily

resident in the United Kingdom, the Channel Islands or the Isle of Man

for any period of at least five years since attaining the age of thirteen

Persons are not summoned to serve on a jury or inquest more than

once in anyone year unless all the persons on the list have already been

summoned during that year Jurors who have given their service in a

prolonged and difficult case are often excused from further service for

a stated period of time or sometimes for life

A written summons sent to any person is accompanied by details of

the provisions of eligibility, disqualifications and excusals as of right A

person receiving a summons is asked to complete a form telling the

court whether he or she is qualified for jury service, and if so, whether it

is the person's wish to be excused 'as of right' or for any other reason If

a person summoned has some physical disability or has insufficient

understanding of English which puts his capacity to serve in doubt he

may be brought before a judge who will determine whether or not he

should act as a juror Any person who serves as a juror is entitled to

receive payment, at the prescribed rates, by way of allowance for

travelling and subsistence and any other financial loss suffered such as

loss of earnings or national insurance benefit

Persons ineligible, disqualified or excused from Jury service

include:-(0) Ineligible

(i) the judiciary;

(ii) others concerned with the administration of justice,

including barristers and solicitors;

(iii) the clergy;

(iv) the mentally ill

(c) Excusal of right

(i) members and officers of both houses of parliament;

(ii) serving members of the armed forces;

(iii) practising members of medical and other similar sions such as dentists, nurses, midwives, etc

profes-(d) Excusal for good cause

Persons suffering from serious ill health, or havinginsufficient understanding of the English language

(e) Excusal for previous jury service

Persons who have undertaken jury service within theprevious two years

Attorney-General The principal law officer of the Crown andlegal adviser to the Government of the day who is chosen from amongQueen's Counsel, usually from those sitting in the House of Commons

Solicitor-General One of the law officers of the Crown and legaladviser to the Government of the day, ranking after the Attorney-General (in Scotland after the Lord Advocate), who is also chosenfrom among Queen's Counsel sitting in the House of Commons

Master of the Rolls One of the senior judges of the Court ~fAppeal, in which he sits ex officio He is also Keeper of the Recordspreserved in the Record Office

Admiralty Marshal An officer of the Queen's Bench Division ofthe High Court One of his functions is to take into his custodymaritime property placed under arrest pending an Admiralty action in

rem against the property Such an action is commenced by a writ ofsummons in rem prepared by the plaintiff or his solicitor In collisiondamage and salvage cases the writ must be issued within two years ofthe date when the damage was caused or the salvage service renderetThe plaintiff having procured the issue of a writ, or his solicitor,may apply (even before the service of the writ) at the Admiralty

24 BUSINESS AND LAW FOR THE SHIPMASTER

Registry in London or at the district registry office where the action has

been commenced for a warrant for the arrest of the property against which

the action has been brought A warrant will not be issued until an affidavit

by the party applying (or his agent) has been filed and an undertaking in

writing lodged to pay the fees and expenses of the Admiralty Marshal The

warrant is ordinarily issued as a matter of course, unless a caveat against

an arrest has been entered A party, by filing a proper notice signed by

himself or his solicitor giving an undertaking to enter an appearance in

any action which may be commenced against the property, the arrest of

which it is desired to prevent, and an undertaking to give bail in a stated

sum, may cause a caveat to be entered This does not prevent a warrant for

the arrest of the property being taken out, but any person who causes the

arrest of property protected by caveat is liable to have the warrant

discharged and to be condemned in costs and damages, unless he proves

sufficient reason for having taken out the warrant

If no caveat has been entered, or if a warrant has been taken out in any

case, the plaintiff, after the warrant has been issued, must leave it with a

notice for its execution in the Admiralty Registry for service by the

Admiralty Marshal or his substitute In practice no delay takes place, as

the Collector of Customs at the port where the property is to be arrested

acts as a substitute for the Admiralty Marshal

Service of the warrant can be effected at any time within twelve

months of its date and, if the property to be arrested is a ship, freight or

cargo on board, service must be effected by nailing or affixing the original

warrant for a short period oftime on the mainmast or on the single mast of

the vessel and afterwards replacing the original with a true copy

A shipkeeper is put in possession, under the authority of the

Admiralty Marshal, during the time the ship is under arrest, and any

person breaking the arrest or interfering with property under arrest is

guilty of contempt of court and liable to attachment By the mere arrest of

a ship the Admiralty Marshal gains custody, though not possession, and,

subject to his control, all previously existing possessory rights continue to

exist

Barrister A barrister-at-Iaw is a person who, having been "called to

the Bar" at one ofthe Inns of Court (Lincoln's Inn, Inner Temple, Middle

Temple, Gray's Inn), is entitled, with other barristers, to the right of

audience and advocacy in the Superior Courts, viz., Courts of the

Sovereign as originally settled at Westminster and distinguished from

inferior courts having only local jurisdiction and which are subject to

control by the Superior Courts Barristers practise also in chambers as

conveyancing counsel, draftsmen of pleadings, and in other capacities

Queen's Counsel The title given to leading barristers as a mark of

distinction which gives them precedence over what is called the "junior

bar" The Queen's Counsel wears a silk gown instead of a stuff gown, sits

within the Bar of the Court, and always has a junior to assist him The

junior counsel does the preliminary work in an action, advises whetherthe action should be brought, drafts the pleadings, advises on evidence,and so on, while the actual case in court is primarily conducted by theQueen's Counsel Barristers receive their appointment as Queen'sCounsel by Letters Patent under the Great Seal issued on the advice ofthe Chancellor-a process known as "taking silk"

Sol~citors and the Law Society A solicitor is a person admitted topractise as a legal adviser to persons seeking his services and as anadvocate in those courts where barristers do not have exclusive rights

of audience The solicitor is an officer of the Supreme Court, but has

no right of audience there in open court unless he holds a recordership

or, when the time comes, he has been appointed as a Circuit judge Hehas, however, a right of audience in chambers in the High Court and incounty courts and petty sessions Besides conducting litigationpersonally for his client, he employs and instructs counsel, wherenecessary, and advises clients in various kinds of non-litigious legalbusiness The scale of solicitors' charges is laid down by statute, and aclient who so desires can have his solicitor's costs taxed by one of thetaxing masters of the court

The Law Society, although a voluntary association to whichsolicitors may belong or not as they choose, has been entrusted byParliament with control over all solicitors, including those who are notmembers of the Society Before a person can practise as a solicitor, hemust obtain from the Law Society a certificate of having passed thefinal examination and apply to have his name placed on the Roll ofSolicitors The Society provides for, and controls, the education ofarticled clerks and holds the examinations which qualify for admission

to the Roll The Lord Chancellor nominates a number of leadingmembers of the profession who are members of the Council of theSociety to form what is known as the Discipline Committee of the LawSociety This Committee has the task of investigating charges ofprofessional misconduct brought against solicitors and, subject toappeal to the High Court, has powers to strike a solicitor off the Roll

or suspend him from practice •

Taxing Masters Officials whose duty it is to tax the costs of allproceedings in the Queen's Bench and Chancery Divisions of the HighCourt More often than not a judgement in favour of one or other ofthe parties to an action includes an order that the successful party bepaid by the other party his "taxed costs" of the action The taxingmaster hears the solicitors for both parties and decides what costs werereasonably incurred by the successful party in bringing or defendingthe action Expenses incurred by the successful party prior to th,commencement of the action are usually excluded and those incurredsubsequently are restricted by the taxing master to a strict minimum It

is, therefore, generally the case that the cost which the successful party

26 BUSINESS AND LAW FOR THE SHIPMASTER

will have to pay to his own solicitor will be substantially higher than

the amount recoverable from the losing party

Offical Referees Permanent officers attached to the Supreme

Court for the trial of such questions as shall be directed to be tried by

them

Notary Public A public official admitted and enrolled as

prescribed by Act of Parliament who "notes" matters which are of

public concern Originally the notary was an official of the

ecclesi-astical courts who drafted and authenticated documents to be used in

the international world of the Western Church In many countries

abroad, the practice of having documents notorially certified spread

from the ecclesiastical world to the commercial world, and in those

countries the practice is still carried on In England the practice did not

develop to anything like the same extent, but there are a number of

"notaries public" to be found in some of the seaport towns and they are

still appointed, as they always have been, by the Master of the Faculties

of the Archbishop of Canterbury The modern notary is generally a

solicitor who attests deeds and other documents, bills of exchange in

particular, so as to enable recovery to be effected in another country

Further reference to notaries is made in Chapter 5 in connection with

the noting of protests by shipmasters

Official Receiver A person appointed by the Dept of Trade and

attached to a court having bankruptcy jurisdiction to act as the receiver

of the property of a person against whom a receiving order in

bankruptcy may be made He is also appointed to act as provisional

liquidator in the case of a company against which a compulsory

winding-up order is made

Receiver A person appointed by the court, or by an individual, to

take possession of property for its protection, or to receive rents and

profits arising from property and apply them as directed

Tipstaff An officer of the court whose duty it is to arrest persons

guilty of contempt of court

SOME LEGAL TERMS

Court of Record A court whose proceedings are officially

recorded and preserved as evidence

Summons A citation to appear in answer to a complaint or

representation made according to law It is the first stage of

proceedings in an inferior court

Originating Summons A method of commencing proceedings inthe High Court without the issue of a writ The main differencesbetween an originating summons and an action are that there are nopleadings in it, evidence is given in the first instance on affidavit instead

of orally (though a deponent is liable to be cross-examined on hisaffidavit), and that it first comes on in chambers, where it may befinally disposed of In the Chancery Division originating summonsesinvolving the exercise of judicial discretion are heard privately inchambers, either by a Master or, if necessary, by the judge Thoseinvolving questions of law are adjourned by the Master into court forargument before the judge This procedure is relatively speedy andinexpensive and is widely used in connection with many matters, forexample, ap.plications for the foreclosure of mortgages

Writ of Summons A document issued in the name of the Queen

by which an action in the Superior Courts is commenced, anddistinguished from a plaint or summons in a county or other inferiorcourt It calls upon the defendant to cause an appearance to the action

to be entered for him within eight days of service; and in default ofcompliance the plaintiff may proceed to judgement and execution

Execution The final process of an action whereby the judgement

by petition, to wind up a company that has become insolvent In theFamily Division petitions are used in application for divorce

Affidavit A statement in writing and on oath, sworn before aperson having authority to administer oaths

Deposition The evidence of a witness reduced to writing

•Caveat A process to stop procedure

Attachment Apprehension, especially for contempt of court It

28 BUSINESS AND LAW FOR THE SHIPMASTER

also applies to the seizure of goods or estate to secure a debt or

demand Seizure of the goods of foreigners to satisfy creditors is called

a foreign-attachment

Nolle prosequi To be unwilling to prosecute

Prima facie (Literally) at first glance (Law) a case apparently

established by the evidence

Bail Surety given by one person, under pain of forfeiture of a

stated sum of money should the surety fail, for the appearance in court

of another person who is charged with an offence Sometimes an

accused is remanded ip his own surety

Injunction An order of the court restraining a person,

perma-nently or for a specified period of time, from doing a certain act or

commanding him to perform a certain act The main principle on

which an injunction is given is that the awarding of damages would not

suffice to do justice It is often preferable to obtain an order to stop a

person committing a certain kind of act once and for all rather than to

have to bring repeated kinds of actions for damages Orders to restrain

a tenant in possession from "committing waste", to restrain a

defendant from publishing libel, or continuing a nuisance, or using

another person's trade mark, and so on, are examples of injunctions

Easement A right enjoyed by one proprietor over the property or

estate of another A right of way is an example

International Law The law which is recognised as between one

nation and another or between several nations

Municipal Law The internal law of the State as opposed to

International Law (Not the law relating to local municipal

authorities )

Power of Attorney An authority under seal given by one person

to another authorising the latter to act on behalf of the former

Estoppel A rule of evidence whereby, in certain circumstances, a

party to an action is prevented from making allegation which is

contrary to that which has already been decided against him, or to that

which he himself has represented to be the fact

Right in rem A right of action against property, i.e., against the

thing itself, irrespective of who owns it, in which the claimant is

enabled to have the property arrested and detained until his claim has

been adjudicated upon In Chapter 2 reference is made to the

distinction between statutory rights in rem and maritime liens

Right in personam A right of action other than a right in rem,i.e., a right against a person A seaman who has a claim for wages has aright in personam against the owner of the ship in which the wageswere earned In addition, he has a maritime lien (see Chapter 2) againstthe ship itself

Without Prejudice Without impairing any pre-existing right

Force majeure Supreme power, or (in appropriate contexts)circumstances beyond one's control

False Pretences A charge arising where goods or money arefraudulently obtained from the owner in circumstances which do notamount to larceny

Larceny Simple theft, or the taking of a person's goods withouthis consent with the intention of permanently depriving him of them

Conversion The converting by a person to his own use of thegoods of another

Tortfeasor A person who commits a tort

In 1895 the then existing Shipping Acts were repealed and replaced

by the Merchant Shipping Act, 1894 This Act, now referred to as theprincipal Act, not only consolidated the earlier Acts but included anumber of amendments Since that date changing conditions havemade necessary the creation of many other statutes, of which those stillwholly or partly in foroe today are:-

M.S Act, 1897, extending the powers of detention for unsafety due

to undermanning

M.S (Mercantile Marine Fund) Act, 1898, which-amongst otherthings-abolished the Mercantile Marine Fund and institutedthe General Lighthouse Fund

M.S (Liability of Shipowners and Others) Act, 1900

M.S Act, 1906 Many sections of this Act were repealed by theM.S Act, 1970

M.S Act, 1911, which extended the jurisdiction of certain BritishCourts in foreign countries

Maritime Conventions Act, 1911, dealing with collision and

M.S (Amendment) Act, 1920

M.S (Scottish Fishing Boats) Act, 1920

M.S Act, 1921, dealing with unsafe lighters

30 BUSINESS AND LAW FOR THE SHIPMASTER

M.S (Equivalent Provisions) Act, 1920, exempting foreign ships

and ships registered out of the United Kingdom from certain

provisions of the M.S Acts

M.S (Safety and Load Line Conventions) Act, 1932, many sections

of which have since been repealed by the M.S (Safety

Convention) Act, 1949, and the M.S (Load Lines) Act, 1967

Merchant Shipping Act, 1948

M.S (Safety Convention) Act, 1949, covering the construction and

equipment of ships, safety certificates, and various provisions

for furthering safety of life at sea Some sections of this Act are

repealed or amended by the M.S Acts, 1970 and 1979

M.S Act, 1950 Largely repealed by the M.S Act 1970

M.S (Liability of Shipowners and Others) Act, 1958

M.S Act, 1964, which is concerned with the application of the Act

of 1949 to the 1960 Safety Convention It deals with new

requirements for cargo ships, damage control and lifesaving

appliances, radio installations and certificates, and certain other

matters including an extension of the duty to report dangers to

navigation

M.S Act, 1965, which deals with the measurement of tonnage

M.S (Load Lines) Act, 1967, which makes further provisions as to

load lines and related matters

Anchor and Chain Cables Act, 1967

Hovercraft Act, 1968

M.S Act, 1970, which gives effect to recommendations contained

in the Pearson Report of March 1967 and replaces Part II and

much of Part VI of the Principal Act

M.S (Oil Pollution) Act, 1971

M.S Act, 1974

M.S (Safety Convention) Act, 1977

M.S Act, 1979

M.S Act, 1981

M.S (Liner Conferences) Act, 1982

M.S Act, 1983, provides for small ships registration

Pilotage Act, 1983 and 1987

M.S Act, 1984, provides for service of improvement and

prohi-bition notices in connection with safety of ships

Dangerous Vessels Act 1985

Prevention of Oil Pollution Act 1986

Safety at Sea Act 1986

M.S Act 1988

There are certain other enactments which, though not Merchant

Shipping Acts, are to a greater or less extent concerned with matters

affecting shipping These include:~

Crown Proceedings Act, 1947

Clean Air Act, 1956

Prevention of Oil Pollution Act, 1971

Carriage of Goods by Sea Act, 1971

Immigration Act, 1971

Social Security Acts 1973 and 1975

Employment Protection (Consolidation) Act, 1978

Employment Acts, 1980 and 1982

Food and Environment Protection Act 1985, Part II

Territorial Sea Act 1987

LEGAL PROCEEDINGS

On account of the special nature of the shipping industry with shipsand seamen scattered world-wide, special provisions supplementing theordinary rules of procedure are contained in Part XIII of the 1894 Act.Here it is sufficient to mention a few particular items

Prosecution of Offences Subject to any special provisions of theAct, an offence declared to be a misdemeanour is punishable by a fineand by imprisonment not exceeding two years, or, alternatively it may

be prosecuted summarily and, if it is, the punishment is fixed atimprisonment for a term not exceeding six months and with a fine notexceeding the statutory maximum Further, an offence under the Actmade punishable by imprisonment not exceeding six months, or by afine not exceeding level 5 on the standard scale must be prosecutedsummarily Any offence committed or fine recoverable under a byelawmade in pursuance of the Act may be prosecuted or recovered in thesame manner as an offence or fine under the Act

Notes: (I) In relation to a fine on summary conviction for anoffence triable either way, statutory maximum means the prescribedsum in s.32(9) of the Magistrates' Courts Act 1980 As from I May

1984 this amount is fixed at £2000

(2) Section 37 of the Criminal Justice Act 1982 introduced a standardscale of fines for summary offences at five levels As from I May 1984the amount specified for each level is as follows:-

Level 4-£1000; Level 5-£2000

Application of Magistrates' Courts Acts These Acts shall, so far

as applicable, apply to any proceeding under the Merchant ShippingAct before a summary court, whether connected with an offencepunishable on summary conviction or not, and also to the trial of anycase before one J.P where, under the Act, such a justice may try thecase

Where any sum may be recovered as a fine that sum, if recoverabJebefore a summary court, shall in England be recovered as a civil debt asprovided by the Magistrates' Courts Acts (For example pilotage dueshave been made recoverable "in the same manner as fines") Being in

32 BUSINESS AND LA W FOR THE SHIPMASTER

the nature of civil debts, and not fines imposed as punishment for

offences, these sums can be recovered as civil debts The debtor is not

liable to imprisonment in default of payment, unless proof of means to

pay has been given

Appeals A person convicted summarily can appeal to the Crown

Court against sentence if he pleaded guilty, or against conviction or

sentence if he pleaded not guilty Further, any person party to

proceedings before a magistrates' court can question the decision on

the ground that it is wrong in law, or that it is in excess of the

jurisdiction, by applying to the magistrates to "state a case" for the

opinion of the Divisional Court of the Queen's Bench, on the question

of law or jurisdiction

Time Limit for Summary Proceedings In general, neither a

conviction for an offence nor an order for payment of money shall be

made under this Act 'in any summary proceeding instituted in the

United Kingdom, unless it is commenced within six months after the

comlJIission of the offence or after the cause of complaint arises, or, if

both or either of the parties are then out of the United Kingdom, unless

it is commenced, in the case of a summary conviction within two

months, and in the case of a summary order within six months, after

they both first arrive, or be at one time, in the United Kingdom, and, in

the case of a summary conviction, before the expiration of three years

beginning with the date on which the offence was committed The

above restrictions are not to apply to summary proceedings for an

indictable offence (s.42 (1), M.S Act, 1979)

Jurisdiction For the purpose of giving jurisdiction, every offence

shall be deemed to have been committed and every cause of complaint

to have risen either in the actual place of occurrence or in any place in

which the offender or person complained against may be It is a basic

principle of international law that no state can legislate outside its

territorial jurisdiction, except for its own subjects Whilst there is much

uncertainty about the territorial limits of various countries, our own

Territorial Seas Act 1987 extends limits to 12 miles outside baselines,

except round the Channel Islands and the Isle of Man where limits

extend for 3 miles

Jurisdiction over Ships Lying off the Coasts Where any district

within which any court or magistrate has jurisdiction is situated on the

coast of any sea, or abutting on or projecting into any bay, channel,

lake, river, or other navigable water, every such court or magistrate

shall have jurisdiction over any vessel on or lying or passing off that

coast, or being in or near that bay, channel, etc., and over all persons

on board or belonging to that vessel (It may be noted that in certain

cases passengers have been held to be "persons belonging to" a ship,

but it does not follow that they necessarily would be in all cases)

Jurisdiction in Case of Offences on Board Ship Where any Britishsubject is charged with the commission of any offence on board anyBritish ship on the high seas or in any foreign port or on board any foreignship to which he does not belong, or where a person not being a Britishsubject is charged with the commission of any offence on board anyBritish ship on the high seas, and that person is found within thejurisdiction of any court in Her Majesty's dominions which would havehad cognizance of the offence if it had been committed on board a Britishship within the limits of its ordinary jurisdiction, that court shall havejurisdiction to try the offence as if it had been so committed (It has beenheld that a person is "found within the jurisdiction"ifhe be brought within

it, even against his will)

Offences Committed at Foreign Ports by Persons Belonging to BritishShips All offences committed ashore or afloat out of Her Majesty'sdominions by any master, seaman, or apprentice who is at the time of theoffence, or was within three months previously, employed in any Britishship are within Admiralty jurisdiction

Kingdom Whenever a complaint is made to a British consular officer

(0)that an offence against property or person has been committed, ashore

or afloat, at a place out of Her Majesty's dominions by any master orseaman, who at the time of the offence, or within three months previously,was employed in any British ship, or(b) that an offence on the high seashas been committed by any master or seaman, belonging to a British ship,that consular officer may inquire into the case upon oath and take steps toplace the offender under restraint to be sent in safe custody to the UnitedKingdom or to any British possession to be proceeded against in court.The consular officer may order the master of any British ship bound tothe United Kingdom or to a British possession to provide passage andsubsistence to the offender and witnesses The master is not required toreceive more than one offender for every I()()tons of the ship's registeredtonnage, or more than one witness for every 50 tons The consular officershall endorse particulars of those sent upon the ship's agreement Qnarrival in the United Kingdom or British possession the master of theconveying ship shall give the offender into police custody to be takenbefore a magistrate, who shall deal with the matter as in cases of offencescommitted upon the high seas Failure to carry any offender or witness orfailure to deliver an offender into police custody as above is an 9ffencepunishable by a fine not exceeding level 5 The expense of imprisoning andconveying an offender where not paid as part of the costs of prosecution ispayable out of public funds

Depositions to be Received in Evidence when Witness Cannot beProduced Whenever in the course of any legal proceeding instituted inHer Majesty's dominions before a judge, magistrate, or other person

34 BUSINESS AND LAW FOR THE SHIPMASTER

authorised by law or by consent of parties to receive evidence the

testimony of a witness is required, then upon due proof that the witness

cannot be found in the place where the proceedings are to be instituted,

any deposition he may have previously made upon oath before any

judge, magistr.ate, or consular officer shall be admissible in evidence,

provided

that:-(0) if made in the United Kingdom, it shall not be admissible in any

proceeding instituted in the United Kingdom;

(b) if made in any British possession, it shall not be admissible in

any proceeding instituted in that possession;

(c) if the proceeding is criminal, it shall not be admissible unless

made in the presence of the person accused

The deposition shall be authenticated by the judge or other person

before whom it is made who shall certify, if the fact is so, that the

accused was present

N.B.-Under the National Insurance (Industrial Injuries) Acts it is

provided that, for the purpose of any claim for injury benefit by or in

respect of a mariner, depositions may be

made:-(0) in any part of Her Majesty's dominions before a judge or

magistrate or Mercantile Marine Superintendent;

(b) in a foreign country before a British consular officer

Detention of Ship Where under the Merchant Shipping Act a

ship is to be or may be detained, any commissioned officer on full pay

in the naval or military service of Her Majesty, any officer of the Dept

of Transport, any officer of Customs, or any British consular officer

may detain the ship If after detention, or after service of the detention

order on the master, the ship proceeds to sea before being properly

released, the master is liable on indictment to a fine or on summary

conviction to a fine not exceeding £50,000, so also is the owner or other

person who sends the ship to sea if party to the offence

If a ship proceeding in defiance of a detention order takes the

detaining officer or any Dept surveyor or Customs officer to sea, the

owner and master shall be liable to pay all expenses incidental thereto

and on conviction on indictment to a fine or on summary conviction to

a fine not exceeding the statutory maximum

Any officer of Customs may refuse clearance or transire to a ship

ordered to be detained Where the Act provides that a ship may be

detained until a document is produced to the proper officer of

Customs, the term "proper officer" means, generally, the officer able to

grant clearance or transire

NB.-The above has been extended to apply to the detention of a

ship under a number of other statutes

Distress on Ship Where a court or magistrate has power to order

payment of seamen's wages fines or other monies then if the party

directed to pay is the master or owner of a ship and payment is not

made as prescribed in the order, the court or magistrate may, inaddition to other powers they may have to compel payment, direct theamount remaining unpaid to be levied by distress or poinding and sale

of the ship, her tackle, furniture and apparel

Admissibility of Documents in Evidence Where a document is bythe Act declared to be admissible in evidence, such document shall, onits production from proper custody, be admissible in evidence in anycourt or before any person authorised to receive evidence Provedcopies of such documents are also admissible in evidence

The officer to whose custody the original document was entrustedshall furnish a certified copy or extract to any person applying onpayment of a fee Further, a person shall be t:ntitled to have (0) acertified copy of particulars entered in a register book on the registry of

a ship, and a certified statement showing the ownership of the ship; and

(b) a certified copy of any declaration, or document A copy of which ismade evidence by the Act, on payment of a fee

Wilfully certifying a document as a true copy or extract knowingthe same not to be true is a misdemeanour punishable by imprisonmentfor a term not exceeding eighteen months Forging the seal stamp orsignature of a document, and tendering such a document knowing it to

be false, are offences each punishable by imprisonment for a term notexceeding seven years

Service of Documents Where for the purpose of the Act adocument is to be served on a person, that document may be served:-

(0) in any case by delivering a copy personally to the person to beserved, or leaving it at his last place of abode; and

(b) if it is to be served on the master of the ship, where there is one,

or on a person belonging to a ship, by leaving it for him onboard with the person who is, or appears to be, in command orcharge of the ship; and

(c) if it is to be served on the master of a ship, where there is nomaster, the ship being in the United Kingdom, on the managingowner of the ship If there is no managing owner, it should'beserved on some agent of the owner residing in the UnitedKingdom If no agent can be found, then it should be served byaffixing a copy to the mast of the ship

If any person obstructs the serving on the master of a ship of anydocument under the provisions of the Act relating to the detention ofships as unseaworthy, that person is liable on conviction on indictment

to a fine or on summary conviction to a fine not exceeding thestatutory maximum, and if the owner or master of the ship is party orprivy to the obstruction, he shall be guilty of an offence •

Application of Penalties Where any court or magistrate imposes

a fine under the Act for which no specific application is provided, the

36 BUSINESS AND LAW FOR THE SHIPMASTER

court or magistrate may direct the whole or part of it to be applied in

compensating any person for wrong or damage sustained by the act or

default in respect of which the fine is imposed

Subject to such directions or to any specific application, all fines

recovered in the United Kingdom shall be paid into the Exchequer, and

those recovered in a British possession paid into the public treasury of

that possession

Legal Proceedings in Scotland and Prosecution of Offences in the

Colonies. Other sections of Part XII of the principal Act make

special provisions for procedure under Scottish law It is also provided

that any offence under the Act shall, in any British possession, be

punishable by any court or magistrate by whom an offence of a like

character is ordinarily punishable, or in such other manner as may be

determined by any Act or ordinance having the force of law in that

possession

The Admiralty jurisdiction of the High Court to deal with legal

proceedings in connection with ships and aircraft and the arrest of

ships and other property is defined in the Supreme Court Act 1981

This is primarily a consolidating measure which attempts to restate the

law in a modern manner for the first time since the passing of the

Supreme Court of Judicature Act, 1873 Admiralty jurisdiction is

defined in sections 20-24 which

provide:-20.-(1) the Admiralty jurisdiction of the High Court shall be as

follows, that is to

say:-(a) jurisdiction to hear and determine any of the questions and

claims mentioned in subsection (2);

(b) jurisdiction in relation to any of the proceedings mentioned in

subsection (3);

(c) any other Admiralty jurisdiction which it had immediately

before the commencement of this Act; and

(d) any jurisdiction connected with ships or aircraft which is

vested in the High Court apart from this section and is for the

time being by rules of court made or coming into force after

the commencement of this Act assigned to the Queen's Bench

Division and directed by the rules to be exercised by the

Admiralty Court

(2) The questions and claims referred to in (I) (a)

are:-(a) any claim to the possession or ownership of a ship or to the

ownership of any share therein;

(b) any question arising between the co-owners of a ship as to

possession, employment or earnings of that ship;

(c) any claim in respect of a mortgage of or charge on a ship or

any share therein;

(d) any claim for damage received by a ship;

(e) any claim for damage done by a ship;

(f) any claim for loss of life or personal injury sustained inconsequence of any defect in a ship or in her apparel orequipment, or in consequence of the wrongful act, neglect ordefault of:-

(i) the owners, charterers or persons in possession or control

of a ship; or(ii) the master or crew of a ship, or any other person forwhose wrongful acts, neglects or defaults the owners,charterers or persons in possession or control of a ship areresponsible,

being an act, neglect or default in the navigation or ment of the ship, in the loading, carriage or discharge of goods

manage-on, in or from the ship, or in the embarkatimanage-on, carriage ordisembarkation of persons on, in or from the ship

(g) any claim for loss of or damage to goods carried in a ship;(h) any claim arising out of any agreement relating to the carriage

of goods in a ship or to the use or hire of a ship;

G) any claim in the nature of salvage (including any claim arising

by virtue of the application, by or under s.87 of the CivilAviation Act, 1982, of the law relating to salvage to aircraftand their apparel and cargo);

(k) any claim in the nature of towage in respect of a ship or anaircraft;

(I) any claim in the nature of pilotage in respect of a ship or anaircraft;

(m) any claim in respect of goods or materials supplied to a shipfor her operation or maintenance;

(n) any claim in respect of the construction, repair or equipment

of a ship or dock charges or dues;

(0) any claim by a master or member of the crew of a ship forwages (including any sum allotted out of wages or adjudged by

a superintendent to be due by way of wages);

(p) any claim by a master, shipper, charterer or agent in respect dfdisbursements made on account of a ship;

(q) any claim arising out of an act which is or is claimed to be ageneral average act;

(r) any claim arising out of bottomry;

(s) any claim for the forfeiture or condemnation of a ship or ofgoods which are being or have been carried, or have beenattempted to be carried, in a ship, or for the restoration of aship or any such goods after seizure, or for droits of

(3) Proceedings referred to in (I)(b) (a) any application to the High Court under MS Acts 1894 to 1984other than an application under s.55 MS Act 1894 for the

are:-2 Droits of Admiralty are rights to the property of enemies, proceeds of wrecks,etc., which go into the public treasury

38 BUSINESS AND LAW FOR THE SHIPMASTER

appointment of a person to act as a substitute for a person

incapable of acting;

(b) any action to enforce a claim for damage, loss of life or

personal injury arising out

of:-(i) collision between ships;

(ii) the carrying out of or omission to carry out a manoeuvre

in the case of one or more of two or more ships;

(iii) non-compliance, on the part of one or more of two or

more ships, with the collision regulations;

(c) any action by shipowners or other persons under the MS Acts

1894 to 1984 for limitation of the amount of their liability in

connection with a ship or other property

(4) Jurisdiction of the High Court under ss(2)(b) includes power to

settle any account outstanding and unsettled between the parties in

relation to the ship, and to direct that the ship, or any share thereof,

shall be sold, and to make such order as the court thinks fit

(5) Subsection (2)(e) extends

to:-(a) any claim in respect of liability under the MS (Oil Pollution)

Act 1971; and

(b) any claim in respect of a liability falling on the International

Oil Pollution Compensation Fund under Part I of MS Act

1974

(6) The reference in ss (2)(j) to salvage claims includes a reference

to such claims for services rendered in saving life for a ship or aircraft,

or in preserving cargo, apparel or wreck as, under s.544 to 546 of MS

Act 1894, or any Order in Council made under s.87 of the Civil

Aviation Act 1982, are authorised to be made in connection with a ship

or an aircraft

(7) The preceding provision of this section

apply:-(a) in relation to all ships and aircraft, whether British or not and

wherever the residence or domicile of the owners may be;

(b) in relation to all claims, wherever arising (including in the case

of cargo or wreck, salvage claims in respect of cargo or wreck

found on land); and

(c) so far as they relate to mortgages and charges, to all mortgages

or charges, whether registered or not and whether legal or

equitable, including mortgages and charges created under

foreign laws

Provided that nothing in this sub-section shall be construed as

extending the cases in which money or property is recoverable under

any of the provisions of the MS Acts 1894 to 1984

21.-(1) Subject to s.22, an action in personam may be brought in

the High Court in all cases within the Admiralty jurisdiction of that

court

(2) In the case of any such claim as is mentioned in s.20(2) (a), (c)

or (s) or any such question as is mentioned in s.20(2) (b), an action in

rem may be brought in the High Court against the ship, or property inconnection with which the claim or question arises

(3) In any case in which there is a maritime lien or other charge on anyship, aircraft or other property for the amount claimed, an action in remmay be brought in the High Court against that ship, aircraft or property.(4) In the case of any such claim as is mentioned in s.20(2) (e) to (r),where-

(a) the claim arises in connection with a ship; and(b) the person who would be liable on the claim in an action inpersonam ("the relevant person") was, when the cause of actionarose, the owner or charterer of, or in possession or in control of,the ship,

an action in rem may (whether or not the claim gives rise to a maritime lien

on that ship) be brought in the High Court

against:-(i) that ship, if at the time when the action is brought the relevantperson is either the beneficial owner of that ship as respectsall the shares in it or the charterer of it under a charter bydemise; or

(ii) any other ship of which, at the time when the action isbrought, the relevant person is the beneficial owner asrespects all the shares in it

(5) In the case of a claim in the nature of towage or pilotage in respect

of an aircraft, an action in rem may be brought in the High Court againstthat aircraft if, at the time when the action is brought, it is beneficiallyowned by the person who would be liable on the claim in an action inpersonam

(6) Where, in the exercise of its Admiralty jurisdiction, the HighCourt orders any ship, aircraft or other property to be sold, the court shallhave jurisdiction to hear and determine any question arising as to the title

to the proceeds of sale

(7) In determining for the purposes ofss (4) and (5) whether a personwould be liable on a claim in an action in personam it shall be assumed that

he has his habitual residence or a place of business within England orWales

(8) Where, as regards any such claim as is mentioned in s.20(2) (e) rt>(r), a ship has been served with a writ or arrested in an action in rembrought to enforce that claim, no other ship may be served with a writ orarrested in that or any other action in rem brought to enforce that claim;but this subsection does not prevent the issue, in respect of anyone suchclaim, of a writ naming more than one ship or of two or more writs eachnaming a different ship

22.-(1) This section applies to any claim for damage, loss of life orpersonal injury arising out of:-

(b) the carrying out of, or omission to carry out, a manoeuvre in thecase of one or more of two or more ships; or

40 BUSINESS AND LAW FOR THE SHIPMASTER

(C) non-compliance, on the part of one or more of two or more

ships, with the collision regulations

(2) The High Court shall not entertain any action in personam to

enforce a claim to which this section applies

unless:-(a) the defendant has his habitual residence or a place of business

within England or Wales; or

(b) the cause of action arose within inland waters of England or

Wales or within the limits of a port of England or Wales; or

(c) an action arising out of the same incident or series of incidents

is proceeding in the court or has been heard and determined in

the court

In this

subsection:-"inland waters" include any part of the sea adjacent to the coast of

the United Kingdom certified by the Secretary of State to be waters

falling by inter'national law to be treated as within the territorial

sovereignty of Her Majesty apart from the operation of that law in

relation to territorial waters;

"port" means any port, harbour, river, estuary, haven, dock, canal

or other place so long as a person or body of persons is empowered by

or under an Act to make charges in respect of ships entering it or using

the facilities therein, and "limits of a port" means the limits thereof as

fixed by or under the Act in question or, as the case may be, by the

relevant charter or custom;

"charges" means any charges with the exception of light dues, local

light dues and any other charges in respect of lighthouses, buoys or

beacons and of charges in respect of pilotage

(3) The High Court shall not entertain any action in personam to

enforce a claim to which this section applies until any proceedings

previously brought by the plaintiff in any court outside England and

Wales against the same defendant in respect of the same incident or

series of incidents have been discontinued or otherwise come to an end

(4) Subsections (2) and (3) shall apply to counterclaims (except

counterclaims in proceedings arising out of the same incident or series

of incidents) as they apply to actions, the references to the plaintiff and

the defendant being for this purpose read as references to the plaintiff

respectively

(5) Subsections (2) and (3) shall not apply to any action or

counterclaim if the defendant thereto submits or has agreed to submit

to the jurisdiction of the court

(6) Subject to the provisions of subsection (3), the High Court shall

have jurisdiction to entertain an action in personam to enforce a claim

to which this section applies whenever any of the conditons specified in

subsection (2) (a) to (c) is satisfied, and the rules of court relating to the

service of process outside the jurisdiction shall make such provision as

may appear to the rule-making authority to be appropriate having

regard to the provisions of this subsection

(7) Nothing in this section shall prevent an action which is brought

in accordance with the provisions of this section in the High Courtbeing transferred, in accordance with the enactments in that behalf, tosome other court

(8) For the avoidance of doubt it is hereby declared that thissection applies in relation to the jurisdiction of the High Court notbeing Admiralty jurisdiction, as well as in relation to its Admiraltyjurisdiction

23.-The High Court shall not have jurisdiction to determine anyclaim or question certified by the Secretary of State to be a claim orquestion which fails to be determined in accordance with the provisions

of the Rhine Navigation Convention 1868

24.-(1) In sections 20 to 23 and this section, unless the contextotherwise requires:-

"collision regulation" means regulations for the prevention ofcollisions made under s.21 of the Merchant Shipping Act 1979, orany such rules as are mentioned in s.421 (1) of the MerchantShipping Act 1894, or any rules made under s.421 (2) of that Act;

"goods" includes baggage;

"master" has the same meaning as in the Merchant Shipping Act

1894 and accordingly includes every person (except a pilot) havingcommand or charge of a ship;

"the Rhine Navigation Convention" means the Convention of the7th October 1868 as revised by any subsequent Convention;

"ship" includes any description of vessel used in navigation and(except in the definition of a "port" in s.22(2) and in ss (2) (c) of thissection) includes, subject to s.2(3) of the Hovercraft Act 1968, ahovercraft;

"towage" and "pilotage", in relation to an aircraft, mean towageand pilotage while the aircraft is waterborne

(2) Nothing in sections 20 to 23 (a) be construed as limiting the jurisdiction of the High Court torefuse to entertain an action for wages by the master or 'amember of the crew of a ship, not being a British ship;(b) affect the provisions of s.552 of the Merchant Shipping Act

shall:-1894 (power of a receiver of wreck to detain a ship in respect of

a salvage claim); or(c) authorise proceedings in rem in respect of any claim againstthe Crown, or the arrest, detention or sale of any of H.M ships

or H.M aircraft, or, subject to s.2(3) of the Hovercraft Act

1968, H.M hovercraft, or of any cargo or other propertybelonging to the Crown •

(3) In this

section:-"H.M ships" and "H.M aircraft" have the meaningsgiven by s.38(2) of the Crown Proceedings Act 1947;

42 BUSINESS AND LAW FOR THE SHIPMASTER

"H.M hovercraft" means hovercraft belonging to the Crown in

Government in Northern Ireland

Notes:-l Section 150 (I) provides that Her Majesty, by Order in

Council, may direct that any of the provisions of s.20-24 specified in

the order shall extend to the Channel Islands and the Isle of Man

2 Admiralty jurisdiction and arrestment of ships in Scotland is

described in Part V of the Administration of Justice Act, 1956

The County Courts which have Admiralty jurisdiction are set out in

the Civil Courts Order 1983 and their jurisdiction and mode of exercise

etc are specified in s.27-31 of the County Courts Act, 1984

Subject to the limitations of amount specified in s.27(2), that Act

states in s.27( I) that an Admiralty county court has Admiralty

jurisdiction to hear and determine any of the claims mentioned there,

which are those previously defined in paragraphs (d) to (p) of s.20 (2) of

the Supreme Court Act 1981 (SCAI981) (see page 37) The limitations

of amount in s.27 (2) are that the court shall not have jurisdiction to

hear a claim in the nature of salvage where the value of the property

saved exceeds £15,000, or to hear any other claim mentioned where the

amount exceeds £5,000

Subsections 27(3), (4) and (5) read and have the same effect as

subsections (6), (7)(a), (7)(b) and the proviso, in section 20 of SCA1981

(see page 38)

Subsection 27(6) specifies that if, as regards any proceedings as to

any act such claim as is mentioned in ss( 1) above, the parties agree by a

memorandum signed by them or by their respective solicitors or agents,

that a particular county court specified shall have jurisdiction in the

proceedings, that court shall, notwithstanding the limitations in ss(2)

above or in county court rules, have jurisdiction to hear and determine

the proceedings

This section does not confer on a county court the jurisdiction of a

prize court within the meaning of the Naval Prize Acts 1864 to 1916,

and any proceedings must be set aside if the Secretary of State certifies

the claim or question must be determined in accordance with the

provisions of the Rhine Navigation Convention 1868

Section 28 provides for the mode of exercise of Admiralty

jurisidiction in a county court (for (e) to (p) above), which has the

same effect as ss 21 (I), and (3) to (8) in SCA1981 (pages 38-9)

with the substitution of the words county court for High Court

where appropriate A county court may issue a warrant for the arrest

and detention of any vessel to which an action in rem relates unless

or until bail to the amount of the claim and reasonable costs be

entered into by or on behalf of the defendant Where a vessel or other

property would or might be sold under an execution to enforce a

judgement the owner of the vessel is entitled subject to giving

security for costs etc., to obtain a county court order for transfer of thesale proceedings, with or without (as the judge thinks fit) the transfer ofany subsequent proceedings, to the High Court

Section 29 deals with the costs of certain Admiralty proceedingscommenced in the High Court which could have been commenced in acounty court and section 30 specifies restrictions on entertainment ofactions in personam (similar to s.22 SCA1981) in collision and othersimilar cases

Where Her Majesty has power under an Act of Parliament to make

an Order in Council, Her Majesty may from time to time make thatOrder in Council, and by Order in Council revoke, alter, or add to anyOrder so made

Every Order in Council is required to be published in the LondonGazette and laid before both Houses of Parliament within one monthafter it is made if Parliament be then sitting, or if not, within onemonth after the next meeting of Parliament

Subject to any special provision otherwise, an Order in Counciltakes effect from the date of its publication or any later date mentioned

in the Order as if it were enacted by Parliament

SURVEYORS

The Merchant Shipping Acts give powers to the Dept of Transport

to appoint and control surveyors of ships The persons appointedare:-

Principal officers (in connection with the survey of ships andmatters incidental thereto)

The powers of a Dept surveyor may be summarised as follows

A surveyor may board any steamship at reasonable times andinspect the ship or any part thereof, or machinery, boats, equipment, orarticles on board, or any certificates of the master, mate or engineer towhich the Act and associated regulations apply, without unnecessarilydetaining or delaying the ship If in consequence of any accident or forany other reason they consider it necessary, surveyors may require theship to be docked for hull survey The penalty for obstructing a •surveyor in the execution of his duties, or failing to comply with arequirement to take a ship into dock for survey, is a fine not exceedinglevel 5 on the standard scale

44 BUSINESS AND LAW FOR THE SHIPMASTER

INSPECTORS

The Department may also appoint any person as an inspector to

report

on:-(a) the nature and cause of any accident or damage sustained or

caused by any ship;

(b) whether the provisions of the Merchant Shipping Acts and

associated regulations or the terms of any approval, licence,

consent, direction or exemption given by such regulations

have been complied with;

(c) whether the hull and machinery of any steamship are sufficient

and in good condition

An inspector and any person having the powers of an inspector

may:-(a) at any reasonable time, (or at any time if the situation is or

may be dangerous) enter any premises in the United Kingdom,

or board a ship registered in the United Kingdom, anywhere,

and any other ship when in United Kingdom territorial waters,

in order to perform his functions as an inspector and to make

an examination and investigation as he considers necessary;

(b) direct that such premises or ship are to be left undisturbed for

as long as necessary to make his examination;

(c) take measurements, photographs, make recordings, and take

samples of articles, substances and the atmosphere in or near

the ship;

(d) cause articles to be dismantled and subjected to tests;

(e) require the production of books or documents for inspection

or copying;

(j) require any person to attend at a specified place and time to

answer questions and certify to the truth of his answers;

(g) require any person to assist him with respect to any matters

within that person's control or for which that person has

responsibilities

Nothing in the above provisions authorises any person

unnecessa-rily to prevent a ship from proceeding on a voyage

No person can be compelled to produce a document which he

would on grounds of legal professional privilege be entitled to withhold

on an order for discovery in a High Court action

A person who attends at a specified place to answer questions and

give assistance is entitled to claim expenses as prescribed by

regu-lations

A person who wilfully obstructs an inspector, or does not comply

with a requirement without reasonable excuse, or makes a statement or

signs a declaration which he knows is false, or recklessly makes a

statement or signs a declaration which is false, is guilty of an offence

and liable on summary conviction to a fine not exceeding the statutory

maximum or, on conviction on indictment, to imprisonment for notexceeding two years or a fine or both

Investigation of Marine Accidents Under section 33 of the 1988Act, the Secretary of State is required to appoint a person as ChiefInspector of Marine Accidents and other persons to be inspectors ofmarine accidents Such inspectors are to investigate any accidentinvolving a ship or ship's boat where at the time of the accident the ship

is registered in the U.K., or the ship or boat is within the limits oHheU.K territorial sea, and such other accidents involving ships or ship'sboats as the Secretary of State may determine He is authorised tomake by regulations such provisions as he considers appropriate withrespect to any investigation, including a definition of "accident" for thepurp(lSe!i of this section

Inquiries and investigations now regulated by the MerchantShipping Act 1970 are:-

lnquiry into the fitness or conduct of an officer

Disqualification of the holder of a certificate other than an officer.Inquiry into the fitness or conduct of a seaman other than anofficer

Preliminary inquiry into a shipping casualty

Formal investigation into a shipping casualty

Re-hearing of and appeal from an inquiry or investigation

Inquiries into deaths of crew members and others

Still regulated by the Merchant Shipping Act 1894 CQurts of Survey

are:-Reference of difficult cases to scientific referees

Preliminary Inquiry Section 55 of the 1970 Act (1) Where any of the following casualties has occurred, that is to

(c) any damage caused by a ship;

and at the time it occurred, the ship was registered in the UnitedKingdom or the ship or boat was in the United Kingdom or theterritorial waters thereof, the Department;

(i) may cause a preliminary inquiry into the casualty to be helc\

by a person appointed for the purpose by the Department;and

46 BUSINESS AND LAW FOR THE SHIPMASTER

(ii) may (whether or not a preliminary inquiry into the casualty

has been held) cause a formal investigation into the casualty

to be held, if in England, Wales or Northern Ireland, by a

wreck commissioner and, if in Scotland, by the sheriff

(2) A person appointed under this section to hold a preliminary

inquiry shall for the purpose of the inquiry have the powers conferred

on an inspector by section 27 of the M.S Act, 1979

Where an incident has occurred which the Minister considers was

or is capable of causing a casualty, he may exercise the powers specified

above and order an inquiry or formal investigation to be held

Following a report of a casualty received by them, directly or

indirectly, the Department may ask the owner or master to amplify it

by completing a WRE 1 form or with regard to specific details If more

information is needed, one of the Department's surveyors may be

asked to investigate informally by visiting the ship, asking questions,

looking at documents and making a brief report If the case is more

serious, the surveyor will be given an appointment to carry out a

preliminary inquiry with the powers of an inspector He will take

statements, require persons to attend, call for production of

docu-ments, and if necessary, remove them A preliminary inquiry is for

departmental purposes and the results are therefore not made public

Formal Investigation Section 56 of the 1970 Act

states:-(1) A wreck commissioner or sheriff holding a formal investigation

into a casualty or incident under s.55 of this Act shall conduct it in

accordance with rules under s.58(1) of this Act, and those rules shall

require the assistance of one or more assessors and, if any question as

to the cancellation or suspension of an officer's certificate is likely to

arise, the assistance of not less than two assessors

(2) Subsections (I), (3) and (4) of section 97 of the Magistrates'

Courts Act 1980 (which provide for the attendance of witnesses and the

production of evidence) shall apply in relation to a formal investigation

held by a wreck commissioner as if the wreck commissioner were a

magistrates' court and the investigation a complaint; and the wreck

commissioner shall have power to administer oaths for the purposes of

the investigation

(3) Where a formal investigation is held in Scotland the sheriff

shall, subject to any rules made under section 58(1) of this Act, dispose

of it as a summary application and, subject to Section 57 of this Act,

his decision on the investigation shall be final

(4) If as a result of the investigation the wreck commissioner or

sheriff is satisfied, with respect to any officer, of any of the matters

mentioned in paragraphs (0)to(c) of section 52(1) of this Act and, if it

is a matter mentioned in paragraph (0)or (b) of that section, is further

satisfied that it caused or contributed to the casualty, he may cancel or

suspend any certificate issued to the officer under section 43 of this Act

or censure him; and if he cancels or suspends the certificate the officershall deliver it forthwith to him or to the Department

(5) The wreck commissioner or sheriff may make such awards withregard to the costs of the investigation and of any parties at theinvestigation as he thinks just and shall make a report on the case to theDept

(6) Any costs which a person is ordered to pay shall be taxable inthe High Court or by the auditor of the sheriff court

(7) (This deals with the application of this section to NorthernIreland.)

Rules as to inquiries, etc Under powers conferred by s.58 of the

1970 Act, the MS (Formal Investigation) Rules 1985 (SIl985 No 1001)have been made The rules prescribe the procedure to be followed atany formal investigation into a shipping casualty or incident and to anyre-hearing not held by the High Court or Court of Session

In practice, a formal investigation, which is a public inquiry, will beheld in addition to or instead of a preliminary inquiry in any of thefollowing circumstances

(a) if the preliminary inquiry is not sufficient;

(b) if it appears likely to lead to the prevention of similarcasualties in the future;

(c) usually where there has been loss of life;

(d) if the casualty has given rise to a substantial amount of publicattention or to a disturbance of public confidence;

(e) if there has been negligence on the part of master or officers;

(f) if a certificate of competency is likely to be dealt with

Where it appears to the Secretary of State that a formalinvestigation should be held, he may direct that it be held by a wreckcommissioner, who will be a senior maritime lawyer, assisted by one ormore assessors of nautical, engineering or other specialist background.The wreck commissioner and assessors are appointed by the LordChancellor who maintains a list of suitably qualified assessors If anyquestion as to the cancellation or suspension of an officer's certificate is •likely to arise, the wreck commissioners must be assisted by not lessthan two assessors, two of whom shall be mercantile marine masters inthe case of a master or deck officer, or, one of whom shall be amercantile marine engineer, and one a mercantile marine master, in thecase of a marine engineer officer Wherever possible at least one of theassessors appointed shall have had experience in the same capacity and

in the same type of ship as the officer concerned The formalinvestigation will generally be held in a suitable building in a portwhich is considered to be most convenient for the greatest number of

The Secretary of State must cause a "notice of investigation" to beserved on any persons, including the Department, who he considersshould be made a party to the investigation, and any such person thus

48 BUSINESS AND LAW FOR THE SHIPMASTER

becomes a party, as does the Secretary of State The notice must

contain a statement of the facts giving rise to the investigation, and a

statement of the questions which the Secretary of State intends to raise

at the investigation, any of which may be amended, added to or

omitted at any time before or during the hearing of the formal

investigation As far as practicable every party is to be given not less

than 30 days notice of the time, date and place where the hearing will

commence, service of notice being effected either personally, by

registered post or by the recorded delivery service to the person's last

known address If at any time during preparation for the investigation

it appears likely that the conduct of any person will be in issue, that

person is to be notified to that effect Any person who is not already a

party may apply for the wreck commissioner's leave to become a party

at any time- before or during the formal investigation

Procedure At the time and place appointed the wreck

commis-sioner may proceed with the formal investigation whether the parties

are present or not, provided that, where a party has been served with

notice by post, proceedings must not continue in his absence unless

notice was served in accordance with the rule specified above The

proceedings commence with an opening statement made by counsel on

behalf of the Secretary of State, followed at the wreck commissioner's

discretion by brief speeches on behalf of other parties Proceedings

continue with the production and examination of witnesses on behalf

of the Secretary of State who may cite documentary evidence These

witnesses may be cross-examined by the parties and then re-examined

by the Department's counsel The Secretary of State's counsel will then

state the questions relating to the shipping casualty or incident, and to

the conduct of persons connected with such casualty upon which the

opinion of the wreck commissioner is desired These questions will be

framed having regard to the evidence which has been given

Any other party is entitled to make a further opening statement, to

give evidence, to cite documentary evidence, to call witnesses, to cross

examine any witnesses called by any other party and to address the

wreck commissioner The Department may also produce and examine

further witnesses, who may be cross-examined by the parties, and

re-examined by the Department's counsel A party who does not

appear in person and is not represented, may make written

represen-tations which may be read out by the wreck commissioner

At the end of the formal investigation the wreck

commissioner:-(a) shall in cases where an officer's certificate is cancelled or

suspended give his decision and a brief summary of his

findings in public; and shall

(b) whether or not a certificate is in issue, make a report on the

case to the Secretary of State including his and the assessors'

findings as to the reasons for the casualty or incident, or as to

any particular matter relating thereto, or as to the conduct of

any person implicated therein, and the reasons for suspending

or cancelling any officer's certificate

Report Each assessor shall either sign the report with or withoutreservations, or state in writing his dissent from it and his reasons forsuch dissent, and such dissent and reasons (if any) must be forwarded

to the Secretary of State with the report Each party must be given acopy of the whole or, where appropriate, relevant part of the report,unless there are good reasons, in the interests of justice, or otherwise inthe public interest, for not doing so

Costs Where a party other than the Secretary of State is ordered

to pay the costs and expenses (or any part of them) the wreckcommissioner must state in his report his reasons for making such anorder

Investigation in a British Possession Abroad This can take place

if a ship suffers a casualty, or if a charge of misconduct is made against

a person on board, when the ship is(a) within the territorial waters ofthe possession, or (b) is bound to a port in that possession, and, in anycase, if the ship is registered in that possession

Investigation in the Dominions Cancellation or suspension of acertificate of competency affects its validity only in the local waters ofthe Dominion, but other administrations may extend the cancellation

or suspension to their waters

Inquiry into Fitness or Conduct of Officer Section 52 of the 1970Act provides as follows:-

(I) If it appears to the Dept that an

officer-(a) is unfit to discharge his duties, whether by reason ofincompetence or misconduct or for any other reason; or

(b) has been seriously negligent in the discharge of his duties; or

(c) has failed to comply with the provisions of section 422 ofthe M.S Act 1894 (duty to give assistance and informatiOnafter collision);

the Dept may cause an inquiry to be held by one or more personsappointed by them and, if they do so, may, if they think fit, suspend,pending the outcome of the inquiry, any certificate issued to the officer

in pursuance of section 43 of this Act and require the officer to deliver

it to them

(2) Where a certificate issued to an officer has been suspendedunder subsection (I) of this section the suspension may, on theapplication of the officer, be terminated by the High Court, or if tqeinquiry is held in Scotland, by the Court of Session, and the decision ofthe court on such an application shall be final

(3) An inquiry under this section shall be conducted in accordance

SO BUSINESS AND LAW FOR THE SHIPMASTER

with the MS (Section 52 Inquiries) Rules, 1982 (SI 1982 No 1752) The

persons holding it shall have the powers of an Inspector and hold it

with the assistance of one or more ~sessors

(4) The persons holding an inquiry under this section into the

fitness or conduct of an

officer-(0) may, if satisfied of any of the matters mentioned in

paragraphs (0) to(c) of subsection (I) ofthis section, cancel

or suspend any certificate issued to him under section 43 of

this Act or censure him;

(b) may make such order with regard to costs of the inquiry as

they think just; and

(c) shall make a report on the case to the Dept

and if the certificate is cancelled or suspended the officer (unless he has

delivered it to the Dept in pursuance of subsection (I) of this section)

shall deliver it forthwith to the persons holding the inquiry or to the

Dept

(5) Any costs which a person is ordered to pay under subsection (4)

(b) of this section may be recovered from him by the Dept

Officer's Section 53 of the 1970 Act

states:-(I) Where it appears to the Dept that a person who is the holder of

a certificate to which this section applies is unfit to be the holder of

such a certificate, whether by reason of incompetence or misconduct or

for any other reason, they may give him notice in writing that they are

considering the suspension or cancellation of the certificate

(2) The notice must state the reasons why it appears to the Dept

that that person is unfit to be the holder of such a certificate and must

state that within a period specified in the notice, or such longer period

as the Dept may allow, he may make written representations to the

Dept or claim to make oral representations to the Department

(3) Mter considering any representations made in pursuance of the

preceding subsection, the Dept shall decide whether or not to suspend

or cancel the certificate and shall give the holder of it written notice of

their decision

(4) Where the decision is to suspend or cancel the certificate the

notice shall state the date from which the cancellation is to take effect,

or the date from which and the period for which the suspension is to

take effect, and shall require the holder to deliver the certificate to the

Department not later than the date so specified unless before that date

he-has required the case to be dealt with by an inquiry under section 54

of this Act

(5) Where, before the date specified in the notice, he requires the

case to be d.ealt with by such an inquiry, then, unless he withdraw!\ the

requirement, the suspension or cancellation shall not take effect except

as ordered in pursuance of the inquiry

(6) The Dept may make regulations prescribing the procedure to

representations in pursuance of this section, the form of any notice to

be given under this section and the period to be specified in any suchnotice as the period within which any steps are to be taken

(7) This section applies to every certificate issued under section 50

of this Act (which deals with special certificates of competency) and toany certificate issued under section 43 of this Act (see Chapter 4) otherthan one certifying that a person is qualified as an officer

Officer Section 54 of the 1970 Act (1) Where a person has, before the date mentioned in section 53(4)

provides:-of this Act, required his case to be dealt with by an inquiry under thissection the Dept shall cause an inquiry to be held by one or morepersons appointed by them

(2) An inquiry under this section shall be conducted in accordancewith rules made under section 58( I) of this Act and those rules shallrequire the persons holding the inquiry to hold it with the assistance ofone or more assessors.3

(3) The persons holding an inquiry under this

section-(0) may, confirm the decision of the Dept and cancel orsuspend the certificate accordingly;

(b) may, where the decision was to cancel the certificate,suspend it instead;

(c) may, where the decision was to suspend the certificate,suspend it for a different period;

(d) may instead of confirming the decision of the Dept., censurethe holder of the certificate or take no further action;

(e) may make such order with regard to the costs of the inquiry

as they think just; and(j) shall make a report on the case to the Dept

and if the certificate is cancelled or suspended it shall be deliveredforthwith to the persons holding the inquiry or to the Dept

(4) Any costs which a person is ordered to pay under subsectiQn

(3)(e) of this section may be recovered from him by the Dept

Failure to Deliver Cancelled or Suspended Certificate Section 59

of the 1970 Act

states:-If a person fails to deliver a certificate as required under sections 52,

53, 54, or 56 of this Act he shall be liable on summary conviction to afine not exceeding Level 3 on the standard scale

Power to Restore Certificate Section 60 of the 1970 Act

Where a certificate has been cancelled or suspended under this Act,

or under section 478 of the M.S Act 1894 (relating to the authority of acolonial court to make inquiries into shipping casualties and, conductPersons holding to have powers of an inspector_

52 BUSINESS AND LAW FOR THE SHIPMASTER

of officers), the Dept., if, of opinion that the justice of the case requires

it, may re-issue the certificate or, as the case may be, reduce the period

of suspension and return the certificate, or may grant a new certificate

of the same or a lower grade in place of the cancelled or suspended

certificate

Inquiries into Deaths of Crew Members and Others Section 61 of

the 1970 Act

states:-(I) Subject to subsection (4) of this section,

where-(a) any person dies in a ship registered in the United Kingdom;

or in a boat or liferaft from such a ship; or

(b) the master of or a seaman employed in such a ship dies in a

country outside the United Kingdom

an inquiry into the cause of the death shall be held by a

superintendent or proper officer at the next port where the

ship calls after the death and where there is a superintendent

O£ proper officer, or at such other place as the Dept may

direct

(lA) Subject to subsection 4 of this section, where it appears to the

Secretary of State

that-(a) in consequence of an injury sustained or a disease

contrac-ted by a person, when he was the master of or a seaman

employed in a ship registered in the United Kingdom, he

ceased to be employed in the ship and subsequently died;

and

(b) the death occurred in a country outside the United

Kingdom during the period of one year beginning with the

day when he so ceased,

the Secretary of State may arrange for an inquiry into the cause of the

death to be held by a superintendent or proper officer

(I B) Subject to subsection 4 of this section, where it appears to the

Secretary of State that a person

may-(a) have died in a ship registered in the United Kingdom or in a

boat or liferaft from such a ship; or

(b) have been lost from such a ship, boat or liferaft and have

died in consequence of having been lost,

the Secretary of State may arrange for an inquiry to be held by a

superintendent or proper officer into whether the person died as

aforesaid and, if the superintendent or officer finds that he did, into the

cause of the death

(2) The superintendent or proper officer holding the inquiry shall

for the purpose of the inquiry have the powers conferred on an

inspector by section 27 of the M.S Act, 1979

(3) The person holding the inquiry shall make a report of his

findings to the Dept and the Department shall make a copy of the

report

(a) if the person to whom the report relates was employed in theship and a person was named as his next of kin in the crewagreement or list of the crew in which the name of theperson to whom the report relates last appeared, to theperson so named;

(b) in any case, to any person requesting it who appears to theDept to be interested

(4) No inquiry shall be held under this section in a case where, inEngland, Wales or Northern Ireland, a coroner's inquest is to be held

or, in Scotland, an inquiry is to be held under the Fatal AccidentsInquiry (Scotland) Act 1895 or the Fatal Accidents and Sudden DeathsInquiry (Scotland) Act 1906

Investigations These matters are now regulated by section 57 of theM.S 1970 which provides as follows:-

(I) Where an inquiry or formal investigation has been held underthe preceding provisions of this Act the Dept may order the whole orpart of the case to be re-heard, and shall do so:-

(a) if new and important evidence which could not be produced

at the inquiry or investigation has been discovered; or(b) if there appear to the Dept to be other grounds forsuspecting that a miscarriage of justice may have occurred.(2)An order under subsection (I) ofthis section may provide for there-hearing to be as follows:-

(a) if the inquiry or investigation was held in England, Wales orNorthern Ireland, by the persons who held it, by a wreckcommissioner or by the High Court;

(b) if it was held in Scotland, by the persons who held it, by thesheriff or by the Court of Session

(3) Any re-hearing under this section which is not held by the HighCourt or the Court of Session shall be conducted in accordance withrules made under section 58 (I) of this Act; and section 56 of this Act •shall apply in relation to a re-hearing of an investigation by a wreckcom"missioner or sheriff as it applies in relation to the holding of aninvestigation

(4) Where the persons holding the inquiry or investigation havedecided to cancel or suspend the certificate of any person or have foundany person at fault, then, if no application for an order undersubsection (I) of this section has been made or such an application hasbeen refused, that person or any other person who, having an interest

in the inquiry or investigation, has appeared at the hearing and is •affected by the decision or finding may appeal to the High Court or theCourt of Session, according as the inquiry or investigation was held inEngland, Wales or Northern Ireland or in Scotland

54 BUSINESS AND LAW FOR THE SHIPMASTER

The Rules of the Court of Survey, 1876 are published by H.M

Stationery Office Copies are kept at the office of the registrar of every

Court of Survey and at every custom house and mercantile marine

office They may be perused at such places by the master or owner of

any ship which may be provisionally detained under the Merchant

Shipping Act and by anyone deputed by him

A notice is required to be put up in some conspicuous place in every

custom house and mercantile marine office, containing the name of the

registrar of the Court of Survey for that district and the address of his

office

Where the owner or master of the ship desires to appeal to a Court

of Survey, he shall file at the office of the registrar of the Court of

Survey for the London district, or for the district where the ship is, a

notice in a prescribed form Immediately upon the filing of the notice

of appeal the registrar shall communicate the fact to the Dept., who

shall then inform him whether the appeal is to be heard by a wreck

commissioner, and, if so, on what day If the Dept decides against a

hearing by a wreck commissioner, the registrar shall ascertain which of

the other judges of the Court will hear the appeal, and on what day If

practicable, the Court shall be summoned on a day not later than

fourteen days from the filing of the notice of the appeal

The district of the Court of Survey for London includes the City of

London, the districts of all Metropolitan County Couqs, and the

districts of certain County Courts in Kent, Essex and Surrey The

district of any other Court of Survey in England is the District of the

County Court of the place at which the Court of Survey is held In

Scotland and Ireland the district is the district of the Port of Customs

of the place at which the Court is held

A list of the judges of Courts of Survey in England is printed

annually in The Law List.Those for Scotland and Ireland are listed in

the Rules of the Court of Survey The Rules provide that the wreck

commissioner shall be a judge of every Court of Survey in the United

Kingdom

The Registrar of the Court of Survey for London is specially

appointed The registrar of any other Court of Survey in England is the

registrar of the County Court of the place at which the Court of Survey

is held

A right of appeal to a Court of Survey is granted to the owner or

master of a

ship:-(1) when a surveyor refuses to give a declaration of survey in

respect of a passenger steamer (but not if the surveyor has been

accompanied by a person appointed by the shipowner and the

two are in agreement);

(2) when a ship is refused a certificate as to lights and fog signals;

(3) when an order has been given to detain a ship as unsafe:

(4) when a ship is refused a safety certificate

In accordance with the principal

Act:-1 The court shall consist of a judge sitting with two assessors

2 The judge shall be summoned from a list approved by theHome Secretary; but if the Dept think it expedient, the judgeshall be a wreck commissioner

3 The assessors shall be persons of nautical, engineering orother special skill, one of whom shall be appointed by theDept and the other summoned by the registrar out of a list of

merchants approved by the Home Secretary; but where there

is no list he shall be appointed by the judge

4 Every case shall be heard in open court

5 The judge may appoint a competent person (or persons) tosurvey the ship and report to the Court

6 The judge, an assessor, or any person appointed by the judgemay board and inspect the ship, its machinery and equipmentand cargo, and may require cargo or ballast to be removed.The penalty for impeding survey is a fine not exceeding levelS

on the standard scale

7 The judge may order the release or final detention of the ship,but one assessor must concur in an order for final detention

8 The owner and master of the ship or any person appointed bythem may attend at every inspection or survey

9 The judge shall send a report to the Dept and each assessormust sign it or sign his dissent therefrom

If the Dept are of the opinion that an appeal to a court of surveyinvolves a question of construction or design or of scientific difficulty orimportant principle, they may refer the matter to one or more scientificreferees chosen out of a list approved by the Home Secretary and havingthe special qualifications necessary for the particular case The referees

Department, but failing such agreement the Home Secretary willappoint them

If the appellant requires it, and gives security for costs, the case shall

be referred to a scientific referee (or referees), who shall have the samepowers as a judge of a court of survey

Amendments to fines introduced by the Criminal Justice Act 1982

•Statutory Maximum As a result of amendments introduced bys.49 of the Criminal Justice Act 1982, the maximum penalty specified onsummary conviction for certain offences triable either summarily or on

56 BUSINESS AND LAW FOR THE SHIPMASTER

indictment (ie triable either way) is the "statutory maximum" The

"statutory maximum" means the prescribed sum in s.32(9) of the

Magistrates' Courts Act 1980 which from 1 May 1984 is specified to be

£2,000

Criminal Justice Act 1982, s.37, introduced a standard scale of fines for

summary offences The standard scale has five levels which from I May

Note:-Where it appears to the Home Secretary that there has been a

change in the value of money since the last order, s.l43(1) of the

Magistrates' Court Act 1980 empowers him to raise the amounts

specified as fines in various provisions of that Act In 1984, in exercise

of this power, the Criminal Penalties etc (Increase) Order 1984 (SI

1984 No 447) doubled the previously specified fines from I May 1984

to raise them to the amounts shown in the above two paragraphs

Crown Prosecution Service In England and Wales, after

investi-gation of a crime, the police may decide to bring a charge They hand

over responsibility for the case to a Crown Prosecutor appointed to the

Crown Prosecution Service The Prosecutor may decide to drop the

charge, or add to or vary it, and the service is then responsible for

providing advocates to present cases in magistrates' courts, and brief

barristers to appear for it in the Crown Court

l Possessory liens, subdivided into (a) particular liens, and (b)general liens

2 Maritime liens

3 Equitable liens

A particular lien is the right of a person in possession of goods toretain possession of them until payment has been made by their realowner of any sum due in respect of those goods Such a lien arises (i)when the person in possession has bestowed labour, skill or expense inaltering or improving the goods, (ii) where the person in possession hasbeen obliged to receive the goods or render the service which has givenrise to the lien, (iii) where the person in possession has saved the goodsfrom loss at sea or capture by an enemy

Such lien cannot arise until the work contracted for has actuallybeen performed; but if the owner of the goods prevents the work frombeing completed, the lien attaches for the work actually done

At common law, a person enforcing a particular lien has no right tosell the goods He may retain them until his charges are settled aqdonce he parts with either actual or constructive possession of the goodshis right of lien is lost In certain circumstances, however, the possessormay have a statutory right to sell the goods Such a right is granted by asection of the Merchant Shipping Act dealing with delivery of goods,details of which will be found in Chapter 9

The most common cases of particular liens

are:-(a) the common law lien of a carrier on the goods he carries for hischarge for carriage (e.g •shipowner's lien on cargo for freight);(b) tradesmen's liens in respect of labour expended for reward on

(c) the lien of an unpaid seller of goods;

(d) warehousemen's liens on goods for their services for reward inconnection with the goods

57

58 BUSINESS AND LAW FOR THE SHIPMASTER

At common law, a shipowner has a lien on the cargo carried on

board his ship

for:-I Freight

2 Cargo's contribution in general average

3 Salvage expenditure

Possessory liens on cargo for charges other than the above must be

specifically contracted for

Freight The common law lien on cargo for freight only arises when

the freight is due on delivery of the cargo Obviously no lien can arise in

connection with freight that is payable in advance, or where a contract

provides for freight to be payable after delivery In the latter case

delivery must be made before the freight can be demanded, and in the

event of such freight remaining unpaid when due the carrier would

have to seek some other remedy for its recovery

In exercising his lien for freight the shipowner may lawfully retain

all the goods for which freight is payable, and that is so even though the

value of the goods exceeds the freight due He may, however, if he

wishes, merely retain sufficient of the goods to give adequate security

for the freight due on them all Where a number of bills of lading have

been issued in respect of one shipment and the various bills have been

endorsed to different consignees, the shipowner has a separate lien

under each B/L extending only to the freight due under each particular

bill The shipowner cannot exercise his lien on goods carried under one

B/L in respect of freight due to the holder of another B/L

Nevertheless, if several B's/L issued in pursuance of the same

agreement between shipper and carrier are all endorsed to the same

person, the carrier may retain goods shipped under one of those bills in

exercise of his lien for the freight due under them all Further, the lien

for freight applies only to the freight due on the particular goods

carried; it cannot be exercised in respect of a payment due from the

owner of the goods under some other transaction

General Average The lien on cargo for general average charges

can be exercised only by the shipowner in possession of the goods and,

where necessary, it is his duty to other cargo owners to protect their

interests by retaining possession of any goods in respect of which a

contribution in GIA is outstanding However, owing to the difficulty

of assessing the amount of such contributions and the time required for

general average adjustment, it is not usual for shipowners to avail

themselves of the right of lien in these circumstances The customary

procedure is for the goods to be delivered in exchange for the security

afforded by a general average bond, a general average deposit, or both

Further reference to this is made in Chapter 14

Salvage Whenever salvage expenditure has been incurred by ashipowner for the preservation of a ship and cargo, he has a lien on thecargo for its proportion so long as the salvage was not made necessary

by neglect or default of the shipowner himself

Demurrage and Detention A lien on cargo for demurrage existsonly when the contract of affreightment expressly gives one Where acharter-party does provide one, that lien does not extend to damagesfor detention at the loading port when a fixed number of demurragedays have been agreed and the ship is detained after the lay days anddemurrage days have expired To give the shipowner full protection, itwould be necessary to stipulate in the CfP that the ship is to have a lien

on cargo for demurrage and detention Liens for demurrage anddetention expressly given by a charter-party do not hold good against abill of lading holder, unless they are specifically incorporated in the

BIL It has been held that the words "all other conditions as percharter-party" are sufficient to incorporate in the BIL all liensexpressly provided by the CfP

Deadfreight As deadfreight is payable, in respect of space whichhas been booked but not used, no common law lien for it can arise.There are no goods which the shipowner can retain by way ofexercising a lien All the same, it is quite common for aCfP to give anexpress lien for deadfreight, and such a lien, evidently, can be exercisedonly by refusing delivery of goods which have been carried to enforcepayment of the deadfreight chargeable in respect of goods which havenot been carried Where an express lien for deadfreight exists, it appliesnot only where the entire cargo is carried at the same rate of freight butalso where the different parcels are carried at different rates

Voyage Chartered Ships The shipowners' lien for freight andother charges on goods shipped under a B/L on a chartered ship may,according to circumstances, apply to the freight due under the CfP or

to the freight due under the BIL The following appear to beestablished rulings •

l If the consignee is the charterer, or charterer's agent, he isbound by the lien for freight due under the CfP and by express liensgiven by the CfP for other charges But if it be found that theshipowner and the charterer-cum-consignee intended that the CfPshould be varied by the BIL (and such an intention can only be foundwhere the charterer is not only the shipper but also the consignee), thenthe lien extends only to the BIL freight The consignee will, in anycase, be bound by liens expressly given in the CfP, provided they are

2 If the consignee is an agent of the shipper who is not thecharterer, or if the consignee is an indorsee of the BIL, he is boundonly by the lien for freight due under the terms of the 81L Such

60 BUSINESS AND LAW FOR THE SHIPMASTER

consignee is also bound by express liens given in the Bj L Express liens

given by the CfP will not bind such consignee, unless they are

incorporated in the Bj L by the insertion of an adequate clause

3 A shipper or endorsee of a Bj L, even if he is acquainted with

the terms of the CfP, will ordinarily be bound only by those CfP terms

which are expressly incorporated in the BjL But if a shipper who does

not know the Cj P terms is also aware that the master of the chartered

ship has no authority to issue a Bj L that does not incorporate the liens

expressed in the CjP, the shipowner will be able to exercise such liens,

in spite of the fact that the BjL has not included them

Time Chartered Ships A simple time charter usually contains a

clause giving the shipowner a lien on all cargoes and all sub-freights for

hire and general average contributions, and giving the charterer a lien

on the vessel for all moneys paid in advance and not earned If the

vessel is sub-chartered, the lien on the sub-freight can only be exercised

before the sub-freight has been paid to the charterer In the exercise of

such a lien it is considered advisable for the shipowner to give a formal

notice to the sub-charterer or consignee requiring him to pay the sum

to the owner before payment is made to the charterer or his agent The

notice might take the following

form:-From Shipowner's Agents to Sub-charterers

the owners of the above vessel from the time charterers,

We accordingly give you formal notice that such sum must

be paid by you to us on behalf of owners out of any freight or

moneys in your hands or due to the time charterers in respect

of the current voyage of this ship Such freight or moneys

must not be released by you to the time charterers or their

agents until the hire has been paid, and, on behalf of the

owners, we must hold you personally liable if this occurs

Owners

Demise Chartered Ships The cargo carried in a ship which has

been demised or leased to the charterer is in the charterer's possession,

not the shipowner's Accordingly, no shipowner's lien on such cargo

can arise

Effect of Warehousing Goods To preserve his lien the shipownermust retain actual or constructive possession of the goods If they arewarehoused with an independent agent the lien is lost, except in theUnited Kingdom where goods landed to a warehouse because theowner has failed to take delivery remain there subject to lien under theM.S Act In all other cases, in order to preserve the lien, goods notretained in the ship must be stored in the shipowner's name or placed in

a warehouse over which the shipowner or his agent has exclusivecontrol

Abandoned Goods Since at common law freight is not earneduntil the goods are delivered at their proper destination, it follows that

no lien for freight can exist in a case where the goods have beenabandoned by the shipowner before their arrival at the agreeddestination and afterwards carried on to that destination by a salvor orother third party

Waiver of Lien A shipowner will be deemed to have waived hislien on goods for freight if he has accepted a bill of exchange for freight

in advance which has not matured by the time of delivery, and this isstill the case should the acceptor of the bill be bankrupt at the time ofdelivery

A general lien is the right which arises by custom in certain trades

or professions, or by contract, to retain goods not only until any sumdue in respect of them is paid; but also in respect of any sum which may

be owing by the owner of the goods to the person in possession ofthem Examples of general liens are (i) a solicitor's lien over all thepapers of his client except his will, (ii) a factor's lien on the goods of hisprincipal There are many others

.

A maritime lien is a right against a ship and the freight she may beearning at the time which gives a claimant power to have the propertyarrested and, if necessary, realised so that the proceeds may be applied

in satisfaction of a claim

Such a lien can be enforced, if the ship is within the jurisdiction ofthe courts of this country, by having her placed under arrest through

A maritime lien provides a most valuable method of enabling aninjured party to make the ship itself available as security for his claimfor the following reasons The right exists independently of the

62 BUSINESS AND LAW FOR THE SHIPMASTER

possession of the property over which it is claimed, and it continues to

attach to the property in the sense that it is unaffected by the change of

ownership The bankruptcy of the shipowner does not affect the lien on

the ship itself The holder of a maritime lien generally has a higher

priority than other creditors if the ship has to be sold and the assets

distributed The lien can be enforced by the issue of a writ "in rem" at

any time within two years of the lien attaching and, in certain cases,

even that period may be extended by the court A claim against a

foreign ship can be enforced if such ship comes within the jurisdiction

of the English courts, which is of particular value when proceedings

against the owner abroad have failed to provide satisfaction

Although a maritime lien is a right "in rem", that is a right against

the "thing" itself as distinct from a right against the person who owns

it, it should be understood that there are other rights "in rem" provided

by statute which are not liens Such rights are intended, in respect of

certain transactions, to give a claimant greater protection than he

would enjoy if he could do no more than bring a personal claim Where

remuneration is claimed for the building, repairing, equipping, or

towing of a ship; or where necessaries have been supplied to a foreign

ship; or where the disputed ownership, possession, or mortgage of a

vessel is in issue in the Admiralty Court, these statutory rights "in rem"

may apply and the ship may be arrested at the suit of the claimant In

these cases, however, the arrest is not with a view to realising the

property, but simply to secure its continued presence until the question

in dispute has been determined At one time the opinion was held that

these statutory rights giving remedy "in rem" did confer a maritime

lien, but the Administration of Justice Act, 1956, made it clear beyond

doubt that they do not It was this Act which widened the grounds on

which ships can be arrested, and brought Great Britain into line with

Continental countries by extending the right of arrest to sister ships

(i.e., ships under the same ownership) The difference between

statutory right "in rem" and maritime lien has been expressed as

follows

The former can be availed of against the ship and freight on the one

hand, and against the cargo on the other, only so long and so far as

they continue at the time of the arrest to be the property of the person

who is personally liable for the damage or breach of duty complained

of By contrast, maritime lien arises the moment the event occurs which

creates it The proceedings "in rem" which perfect the inchoate (i.e.,

incomplete) right relate back to the time when it first attached and the

maritime lien travels with the thing into whatsoever possession it may

come The arrest of a vessel under statute is, on the contrary, only one

of several alternative proceedings, and no right in or against the ship is

created at any time before the arrest

Maritime liens are of two classes, namely (a)contractual liens, and(b) damage liens

Contractual liens are those which arise in respect of payment dueunder some contract Examples are bottomry, respondentia, salvage,seamen's wages, master's wages, master's claim for wrongful dismissal,and master's claims for disbursements (in so far as the master hadauthority to pledge the owner's credit) By long established custom aseaman has a lien on the ship for his wages, but apparently the masterhas not always enjoyed the same right However, the position asregards the master has been rectified by statute Section 167 (I) of theprincipal M.S Act gave masters the same rights as are enjoyed by aseaman Although that section is now repealed, the 1970 Act makessimilar provision

There is no lien for either pilotage or towage unless the servicebecomes merged in a salvage service Nor is there a lien on a ship forport dues

Although it is usual to include the salvage lien in this list ofcontractual liens, it should be noted that, strictly, a salvage servicemust be a voluntary service so that no contract can exist In modernpractice, however, salvage agreements are always entered into by theparties, and the form of agreement generally used is constructed so as

to retain the salvor's right of maritime lien on the property salved.Damage liens arise principally from collision damage and thefollowing points are important:-

(i) The damage must be done by the ship (In a particular casethe crew of ship "A" cut the cables of ship "B" in order to get

to sea "B" suffered damage in consequence, but her ownershad no lien on ship "A")

(ii) Although the damage must be caused by the ship, the liendoes not arise unless in support of a personal action If lien isclaimed, the wrongful act or neglect of the owner or hisservant must first be proved

(iii) Lien can be exercised only within two years of the date of'thedamage suffered unless the court sees fit to extend the period

In order of priority contractual liens rank as follows Salvageobviously comes first, because the successful salvage service haspreserved the property which provides the fund out of which otherclaimants can be paid On the same principle, if there should be severalsalvage liens on the same ship at the same time the latest would rankfirst and the earliest last Next in order come seamen's wages, and thenthe wages and other claims of the master All these are preferred tobottomry but if, before enforcing settlement of their claims, the masterand seamen allow the ship to proceed on a new voyage, any botto~rybond entered into on that new voyage would have priority over theprevious liens

64 BUSINESS AND LAW FOR THE SHIPMASTER

Damage liens, even though they arise on different occasions, are

treated as being of equal rank, and if the assets are insufficient to

satisfy all claims in full the court will distribute them on a rateable

basis

Where there are conflicting claims between contractual liens and

damage liens no, fixed rule exists as to priority The court will deal with

them on an equitable basis, being guided by the circumstances of the

case Generally, however, the court will be influenced by the following

principles (I) Liens arising from tort should rank prior to those which

previously arose from contract Master and crew, volunteer salvors,

and bottomry bond holders are all persons who have concerned

themselves with the ship of their own free will, and their claims should

be postponed to that of the owner of a ship damaged in a collision

which occurred after the contractual liens accrued (2) If the collision

damage lien arises first, subsequent contractual liens should take

precedence on the grounds that the subsequent services for reward have

preserved the fund for the benefit of the collision creditors

Maritime Lien and Mortgage If there are claims against a ship

giving the right of maritime lien, and there are mortgages on the ship as

well, the question of priority again rises In these circumstances it is

ruled that the mortgages must wait until the liens are discharged, as the

former are voluntary commercial transactions

Maritime Lien and Possessory Lien Suppose a ship on which

there are claims giving maritime liens is put under repair, and the ship

repairer acquires a possessory lien in respect of his claim for payment

for work done Here again a conflict arises, the settlement of which

seems to depend upon the order of events Since the ship was already

encumbered by maritime liens when the repairer admitted her to his

yard, his claim will be postponed until the maritime liens have been

discharged On the other hand, the repairer's possessory lien will rank

superior to any claims that arise after he has accepted the ship This

point, however, is probably only of academic interest as the possessory

lien would be lost if and when the repairer allowed the ship to depart

from the area over which he has control

Maritime Liens and Bills of Sale Since a maritime lien is

transferable with the property it is important that a bill of sale should

indicate whether the ship is free from such an encumbrance If a ship

encumbered by maritime lien is sold, the new owner will have to settle

the outstanding claim or risk seizure of the vessel which may then be

resold by order of the court to satisfy the claim

An equitable lien may be defined as the right to have certain

property applied in a particular manner Unlike a possessory lien, itexists irrespective of possession and confers on the holder the right to ajudicial sale Liens of this type being really outside the scope of thisbook, it will suffice to give only one example, viz., the partnership lien.This consists of the right of a partner on dissolution of the partnership tohave the firm's property applied in the settlement of the firm's liabilitiesand any surplus divided among the partners in proper proportion~

CONTRACTS

The general law of contract is a very wide subject and no attempt isbeing made here to summarise it Nevertheless, a few remarks aboutcontracts in general are purposely included in the hope that what is saidelsewhere in the book about particular forms of contracts will be moreeasily understood

Shipmasters have a direct or indirect interest in many forms ofcontracts such as crew agreements and other contracts of service,charter-parties, bills of lading, contracts for the supply of bunkers,stores and other goods, repair contracts, stevedoring contracts, andothers in connection with towage, pilotage, and so on For this reason it

is desirable that they should be to a sufficient extent aware of the lawgoverning the actions of persons who make contracts, and shouldrecognise that lack of knowledge can never be pleaded as an excuse by aperson who becomes involved in the law Where a contract is enteredinto it is always assumed that the parties to it were aware of, and madeallowances for, the legal consequences of any breach of the agreement

If an agreement is not a contract there is no redress in the event ofeither party failing to carry it out On the other hand, where there is acontract a breach of it always gives rise to a legal remedy Hence it isimportant to know what agreements the courts will, and will not, regard

as contracts For example, if an agreement contains a clause to the effectthat it is to be biriding in honour only, the courts will give effect to thatclause and no action could be sustained on the agreement .

AVoid Contract is one that is destitute of legal effect, e.g., a contractwhich is impossible of performance

66 BUSINESS AND LAW FOR THE SHIPMASTER

An Illegal Contract is one which contravenes the law, whether

common law or statute law Whilst it is true that an illegal contract is

void, it does not follow that a void contract is necessarily illegal

An Unenforceable Contract is one that is not capable of proof, or

one which is in defiance or neglect of revenue laws has not been

properly stamped (though this may be rectified by paying a fine to the

revenue authorities), or one in respect of which legal remedy has been

barred by lapse of time

There are three classes of contracts known, respectively, as (I)

contracts of record, (2) speciality contracts, or deeds, (3) simple or

parol contracts

A Contract of Record is the obligation which is imposed by the

entry in the parchment rolls of the proceedings in a court of record

Such contracts are principally judgments and recognisances A

judgment is an obligation imposed on one party by a court of record in

favour of another party Being an order of the court and an obligation

imposed, it is not strictly a contract which rests upon agreement A

recognisance is a contract made with the Sovereign through her

Judicial Representative, generally in the nature of a promise to do

some particular act or answer to a stated penalty, e.g., an undertaking

by a person tried on a criminal charge to come up for judgment if called

upon, or a promise to pay a specified Sum of money if an accused

person out on bail fails to appear at the trial

The terms of such a contract admit of no dispute but are

conclusively proved by the record itself

A Speciality Contract, or Deed, is a written contract executed

under seal and delivered Both sealing and signature are essential for

the proper execution of a deed Delivery may be actual or constructive,

and it is usual for it to be made simultaneously with execution The

party executing touches an affixed wafer with his finger and declares,

"I deliver this as my act and deed"

A Simple Contract is a contract created by verbal promise, or by

writing not under seal, or by implication Strictly speaking, a parol

contract is one entered into by word of mouth but it is customary to use

the term to describe simple contracts of all kinds Most contracts

entered into in ordinary commercial transactions are simple contracts

A contract by implication can arise in various ways By boarding a

public vehicle, or hailing a taxicab, a person indicates his intention by

mere act so that a contract is implied

For a contract to be valid there must

(I) Offer and acceptance There must be a distinct communication

by the parties to one another of their intention It is important

shopkeeper exhibiting goods for sale in his window, even ifthey are marked with a price, is not making an offer, but ismerely making an invitation to offer

(2) Genuineness of the consent expressed in the offer andacceptance It may happen that consent to the agreement mayhave been so given or obtained that it did not express the trueintention of the consenting party This could arise frommistake, misrepresentation, fraud, duress, or undue influence.(3) Form of consideration "Form" means some solemnity atta-ching to the expression of agreement, as in the execution of adeed "Consideration" means valuable consideration (in thissense valuable does not mean of high value, but means capable

of being valued), and this must consist of something capable ofbeing estimated in money Consideration is necessary to thevalidity of every promise not under seal Consideration hasbeen defined as "some right, interest, profit, or benefitaccruing to one party, or some forbearance, detriment, loss, orresponsibility given, suffered, or undertaken by the other".(4) Capacity of the parties to contract Certain parties are by lawincapable, wholly or in part, of binding themselves by apromise, or enforcing a promise made to them Examplesinclude enemy aliens, convicts, infants, lunatics, and drunkenpersons

(5) Legality of the object It may be declared by statute that acontract is illegal or void, a common instance of such an illegalcontract being one of a gaming nature Certain contracts areillegal at common law,e.g., agreement to commit an indictableoffence or a civil wrong, or an agreement contrary to publicpolicy

(6) Possibility of performance at the time when the contract isentered into If a contract is impossible of performance at thedate when it is entered into it is void, but the impossibilitymust be complete, not merely in relation to the party liable toperform the act or fulfil the promise Impossibility may ariseprior to, or subsequent to, the formation of the contract andremedies will differ according to circumstances

Should any of the above elements be lacking the contract will either

be void or voidable, but even if they are all present the contract maystill be unenforceable

Contracts may be discharged by agreement, performance, breach,impossibility, or operation of law

68 BUSINESS AND LAW FOR THE SHIPMASTER

Discharge by Agreement can take place by (1) waiver, i.e., an

agreement by the parties that they shall no longer be bound by the

contract; (2) by substituted agreement, e.g., where with the consent of

the creditor a new debtor is substituted for an old one; (3) by condition

subsequent, i.e., a provision in the contract that the fulfilment of a

condition, or the occurrence of an event, shall discharge the parties

from further liabilities

D,scharge by Performance may be effected by actual performance

where· each party actually carries out his part of the contract, or by

payment where the liability of one party to the other consists in the

payment of a sum of money

Discharge by Breach Breach of contract may take place in the

following

ways:-(I) By renunciation If one party renounces his liabilities before

the time for performance has come, the other party is

discharged if he so pleases, and may at once sue for the breach

Alternatively, the person entitled to performance may refuse

to accept the renunciation, hold the other party to the

contract, and institute proceedings if the contract be not duly

performed

(2) By one party through his own act making it impossible to fulfil

the contract, in which case the other party may treat the

contract as renounced and commence an action at once

(3) By failure of performance Where there has been a breach by

failure of performance, the injured party may bring an action

for such breach, but it depends on the nature of the contract

and on the nature of the breach whether the injured party is

himself discharged from further performance or not If the

contract requires both parties to perform their respective

promises simultaneously, the promises being inter-dependent,

breach by one party does discharge the other However, if the

contract consists of a number of divisable promises, partial

failure of performance by one party does not necessarily

discharge the othe~ party from further performance The

question of degree comes into it If the breach is of such a

serious nature that it goes to the root of the whole contract,

the innocent party will be discharged The same will apply if

the act or conduct of one party amounts to an intimation of an

intention to abandon or refuse performance of the contract

Where the breach is less serious, the injured party, though able

to bring an action for damages will not be liberated from the

performance of his own promises

Those terms of a contract which are so fundamental that they may

be said to go to the root of the whole contract are referred to as

"conditions", whilst those that are merely collateral to the agreement

are referred to as "warranties" Summing up what has been said above,

therefore, breach of a condition will give rise to an action for damages

and will also discharge the injured party from further performance.Breach of a warranty, on the other hand, gives the injured party a

performance Here it is necessary to point out that the term "warranty"can easily give rise to some ·confusion as it is used in the MarineInsurance Act in a different sense Marine insurance warranties, whichare explained in Chapter 14, correspond to "conditions" in othercontracts, and if such a warranty is broken the insurer is entitled toavoid the policy unless, of course, it contains a clause providingotherwise

Both conQitions and warranties are only parts of a contract and it isoften found difficult to determine )Vhether a particular item is acondition or a warranty The finding will depend on the intention ofthe parties deduced from the terms of the contract and the subjectmatter to which it relates

Conditions may be precedent, concurrent, or subsequent

A Condition Precedent is one which has to be fulfilled before themain purpose of the contract is performed To take a commonexample, under the provisions of a voyage charter-party it is acondition precedent to the charterer's obligation to load that the shipshall be arrived, ready and reported on or before the cancelling date Ifthis is not complied with the charterer may exercise his option to cancelthe contract

A Condition Concurrent is one to be performed at the same time asthe main agreement For instance, in the case of a cash sale paymentmust be made concurrently with the delivery of the goods to thepurchaser

A Condition Subsequent is a condition the non-observance ofwhich would entitle the other party to avoid transactions alreadycompleted The "excepted risks" of a charter-party serve as anillustration The occurrence of an excepted risk releases the shipownerfrom the strict performance of the contract Unjustifiable deviation bythe carrier's vessel is an example of a breach of a condition subsequent

in a voyage charter-party or a bill of lading •

(0) Where there is a total breach of contract, or a partial breach incircumstances where the injured party is discharged from furtherperformance, the following remedies are available The injured partymay:-

(1) consider the contract discharged by breach, refuse to do anyact under the contract himself, and bring an action for Idamages;

(2) continue to act upon the contract and bring an action fordamages;